[And adding to the discussion between DWBartoo @ 46+56 & BoxTurtle @ 49.]

4) If [KSM] has a real lawyer (or the aclu might pick this up), paperwork is filed to challenge the commissions on constitutional grounds. It goes all the way to the supremes. Given that the courts are operating and there is no national emergency, I say 7-2 the commissions are invalidated.

The bolded part of your scenario has already happened, BoxTurtle, for at least a couple of the 9/11 Five defendants, and for a couple more Guantanamo prison camp inmates who aren’t. Their petitions were filed in the Court of Appeals for the D.C. Circuit, starting last September, into November (thus after passage of the 2009 MCA, and after AG Holder made his decision about trying the 9/11 Five), and possibly beyond.

What little I know about these four (or more) appeals is thanks mostly to Lyle Denniston of SCOTUSblog digging up the briefs and posting links. I wrote about and quoted from the first petition here.

A sampling of that appeal (to which the government was asked to respond, but whose final disposition, if any, is unknown to me):

RELIEF SOUGHT
Petitioner requests that the Court hold that the Military Commissions Act of 2006 is unconstitutional, declare all proceedings before the military commission to be a nullity, and enjoin further proceedings therein.

ISSUES PRESENTED
(1) Does the Military Commission Act of 2006, on its face or, in the alternative, as applied in the military commission proceedings below, exceed Congress’s constitutional powers to convene law-of-war military commissions under the Define and Punish Clause (Const., Art. I, sec. 8, cl. 10)?

(2) Does the Military Commissions Act of 2006, on its face, violate the equal protection component of the Fifth Amendment’s Due Process Clause?

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

We demonstrate in this Petition that the Military Commissions Act of 2006, Pub. L. 109-366, 17 (October 2006) (“MCA”), on its face and as applied in this case, exceeds the constitutional limits on Congress’s power to authorize military commissions. In the terms of Geneva Convention Common Article 3, the commission in this case is not a “regularly constituted court.” […]

Not only is the MCA unconstitutional on its face, but the proceedings themselves have been “irregular” in every sense. In fact they have been a travesty of justice, a “system” — in the military judge’s own words — “in which uncertainty is the norm and where the rules appear random and indiscriminate.” Military Judge Ruling D-126, at 3.

The reason for this state of affairs, moreover, is clear: These cases were never intended to do justice. Instead, what the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.

The process has been corrupted by illegitimate political considerations at every step. Political distortions of the judicial process begin with the MCA itself. The provision limiting its jurisdiction to aliens (the basis of the facial challenge infra) was designed to avoid the political consequences of imposing the MCA’s facially unconstitutional procedures like this on American citizens. Sections 948c, 948d(a). No other American criminal court system is so obviously founded on such politicized and illegitimate premises.

[…]

[Footnote 4: Since her appointment in February 2007, the [Convening Authority, Ms. Susan Crawford] has denied 84 percent of expert requests from defense counsel in military commissions. The few granted experts occurred predominantly in United States v. Omar Khadr, where the Canadian government has been actively involved.]

[…]

By contrast, American enemy belligerents may only be tried in federal court or in regular court-martial proceedings under the special law-of-war court-martial jurisdiction, which applies to “persons” without regard to national origin. 10 U.S.C. Sec. 818. American enemy belligerents are thus entitled to the full protections of the Constitution or the regular military justice system that tries American service members, while aliens are relegated to a criminal justice system that is specifically designed to deny them those rights.

From the Petition for Writ of Mandamus And Writ of Prohibition filed on September 9, 2009 on behalf of Ramzi Bin Al Shibh, by U.S. Navy JAGs Suzanne Lachelier and Richard Federico of the Office of Chief Defense Counsel, Military Commissions, Department of Defense.

There’s also a stunning illustration of the travesty of Guantanamo Military Commission “process” detailed in this subsequent PETITION FOR WRIT OF MANDAMUS OR WRIT OF PROHIBITION filed on September 17, 2009, on behalf of 9/11 Five defendant Mustafa Ahmed Al Hawsawi, by his civilian lawyer Nina Ginsberg, exposing the sham, irregular proceedings that Guantanamo inmates – even those few legitimately considered to be “high value” suspects – are being subjected to, out of sight and out of mind of the American Congress at their behest, largely because it’s all been studiously ignored by the American media (the Miami Herald’s Carol Rosenberg excepted):

By this point in the [Guantanamo Military Commission] proceedings [for a hearing held July 16, 2009], petitioner [“9/11 Five” defendant MUSTAFA AHMED AL HAWSAWI] had been told first that he would not be allowed to speak and did not have to come to court (i.e., by the Military Judge’s written order conveyed to him in writing and by his attorneys); then, that he should come to court, and would be allowed to make a five-minute speech (i.e., by Military Judge’s order on oral motion of the prosecutor); and, finally, that the opportunity to address the court for five minutes did not apply to him (i.e., communicated by the Judge personally, after petitioner had come to court). The arbitrary and bewildering sequence of events caused petitioner to become more visibly agitated than at any point in the preceding thirteen months of proceedings, and compelled him to be removed from the courtroom.15

The Military Judge eventually took up the competency related discovery matters for which the proceedings purportedly had been scheduled. Because previous motions to present the case for defense experts on an ex parte basis [to the military judge but not to the military prosecutors/jailers] had been denied, and due to the limitations on the disclosure of information imposed by the protective orders [that the military judge had imposed on the defense counsel and proceedings], the detailed [Navy JAG] military counsel for Ramzi bin al Shibh, Cmdr. Suzanne Lachelier, had to justify her request for a defense expert without being able to reveal whether the basis for it was either (1) provided by her client or (2) related at all to his torture history.

Cmdr. Lacherlier’s attempt[s] to justify a defense request for the assistance of a mental health expert with expertise in the long-term cognitive effects of sleep deprivation were disrupted by a government-activated censoring mechanism in the courtroom. The audio feed of Cmdr. Lachelier’s comments to the public gallery was silenced and a rotating red light began flashing. The disruption signified a determination by a government agent that Cmdr. Lachelier had compromised the security of classified information by arguing “the government cannot hide behind the fact that [CENSORED]…” Cmdr. Lachelier waited for the audio feed to be restored, and resumed her argument, but the audio was again interrupted and the red light began to flash. Cmdr. Lachelier objected: “Judge how can I be expected to know what is permitted and what is not? The rules are written in sand and the government can change them whenever it wants.”

Neither the government nor the Military Judge disputed Cmdr. Lachelier’s characterization of the prosecution’s unbridled power to make ad hoc revisions to the rules. Instead, as if to underscore the point, the Judge responded only by saying “Mr. Powell needs to speak to someone.” At that point the “court security officer” – believed by all to be an employee of the CIA – left his post by the Judge’s side, and walked out of the court. The courtroom – including the Judge, prosecutors and defense lawyers – waited in silence for Mr. Powell’s return. When Mr. Powell reappeared, he walked directly to the Judge and whispered to him. The judge, without consulting counsel, then parroted Mr. Powell’s apparent instructions to Cmdr. Lachelier: “You can talk about post-September 2006. Anything prior to that, just refer to the written record.”

It was after the proceedings on July 16, 2009, that the Military Judge frankly acknowledged that there were no rules governing the proceedings below. The Military Judge bluntly described the Commissions as “a system in which uncertainty is the norm and where the rules appear random and indiscriminate.” [Order of July 13, 2009 [sic]; emphasis added].

– al Hawsahi Defense Counsel Nina Ginsberg, 9/17/2009

As Nina Ginsberg’s brief goes on to say:

The Hamdan Court held that military commissions must be conducted before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Hamdan, at 63 1-2 (plurality); id., at 642-3 (Kennedy, J., concurring). The minimal requirement of any “regularly constituted court” is that it satisfies the rule of law. Hamdan, 548 U.S. at 635 (“[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction”).

As for:

So WHO may gainsay what is ACTUALLY going on? – DWBartoo

If the three-judge appellate panel dealing with at least one (and probably all) of these petitions – Judges Karen LeCraft Henderson, Judith Rogers, and David Tatel – finds a way (or has found a way) to duck the profound moral and legal merits of the case made by these briefs, which have been filed by both military JAG and civilian defense counsel, about the Executive Branch Military Commission proceedings at Guantanamo, we as a nation and as a people, and our “independent” judiciary’s Judicial Branch of government, will have clearly demonstrated that a profound hostility to the fundamental human rights and liberties that form the foundation of this nation and its (Constitutionally-limited, accordingly) government has permeated deeply into all three branches of our government, whenever Muslims, or aliens, or other demonized peoples, are the victims of those in our government who have decided, so far with impunity, to willfully abuse the powers of their public office.