legislative history of the MCA 2006 suggests the intention to apply procedures depriving aliens of rights that US citizens could not be deprived of, such as, at minimum, the right to habeas corpus.762 But if military commission procedures are not to be applied to US citizens, it seems impossible to argue reasonable and objective justifications for aliens to be subjected to them.763 As “similar cases are [to be] dealt with in similar proceedings”,764 persons accused of comparable conduct (capable of being tried in ordinary courts) should also be prosecuted before ordinary courts following procedures that comply with international fair trial standards. Accordingly, the legislative provision limiting military commission jurisdiction to non-US citizens appears to violate the prohibition of discrimination and the principle of equal protection of the law.765 331. Furthermore, ODIHR is concerned that only Muslim men have been prosecuted before military commissions. While the MCAs do not expressly limit the jurisdiction of military commissions on the basis of gender or religion,766 the effect of the MCAs in practice gives rise to concern that the treatment of the defendants may be discriminatory. d. Recommendations • Regardless of the status of Guantánamo detainees under international law, to ensure that those suspected of a criminal offence are prosecuted before an ordinary court in 762 United States Court of Appeals for the District of Columbia Circuit, al Bahlul v. United States of America, “Brief of Petitioner”, op. cit., note 760, pp. 51-52; United States Court of Appeals for the District of Columbia Circuit, Hamdan v. United States of America, “Brief of Amici Curiae”, op. cit., note 754, pp. 1, 4; United States Military Commission, United States of America v. Al-Nashiri, AE 046, “Defense Motion to Dismiss for Lack of Personal Jurisdiction because the Military Commissions Act Violates the Equal Protection Component of the Due Process Clause”, 12 March 2012, pp. 5-7. Relevant statements include: United States Senator Jon Kyl, 28 September 2006, <http://fas.org/irp/congress/2006_cr/s092806.html>: “[T]here is nothing wrong with this legislation before us limiting the rights of habeas to those who are citizens and not extending it to alien enemy combatants”; United States Senator John Cornyn, 28 September 2006, <http://fas.org/irp/congress/2006_cr/s092806.html>: “Now, we may disagree - and we do disagree on the Senate floor - with the level of rights that an accused terrorist should have. I happen to believe these individuals, who are high-value detainees at Guantanamo Bay, do not deserve the same panoply of rights preserved for American citizens in our legal system”; United States Senator John Warner, 27 September 2006, <http://fas.org/irp/congress/2006_cr/s092706.html>: “It is wrong to say that this provision captures any U.S. citizens. It does not. It is only directed at aliens. (…) We have no intention to try to accord aliens engaged as unlawful combatants with all the rights and privileges of American citizens (…)”; United States Senator Lindsey Graham, 27 September 2006, <http://fas.org/irp/congress/2006_cr/s092706.html>: “Under no circumstance can an American citizen be tried in a military commission. The jurisdiction of military commissions does not allow for the trial of American citizens or lawful combatants, and those who say otherwise, quite frankly, have not read the legislation because there is a prohibition to that happening”; United States Senator Jon Kyl, 27 September 2006, <http://fas.org/irp/congress/2006_cr/s092706.html>: “This legislation has nothing to do with citizens. The decision cited by the Senator from Pennsylvania is the Hamdi decision, which dealt with a U.S. citizen. And, of course, the writ of habeas corpus applies to U.S. citizens. Our legislation does not”. 763 See, for instance, “US: Revised Military Commissions Remain Substandard”, Human Rights Watch website, op. cit., note 753: “If the commissions are too unfair to be used on US citizens, they're too unfair to be used on anyone”; Cole, “Military Commissions and the Paradigm of Prevention”, op. cit., note 258, p. 6; United States Court of Appeals for the District of Columbia Circuit, Hamdan v. United States of America, “Brief of Amici Curiae”, op. cit., note 754, p. 11. 764 UN HRC, General Comment No. 32, op. cit., note 648, para. 14. 765 See, also, UN Special Rapporteur on the independence of judges and lawyers, Report to the Commission on Human Rights, E/CN.4/2005/60, op. cit., note 236, para. 18: “military commissions (…) violate the principles of equality before the law and nondiscrimination, since only non-US nationals may be tried before them”. 766 Because the military commission in Al-Nashiri found “no reference to the Islamic religion or to Muslims in the text of the statute” and only “a reference to the al Qaeda organization as a part of the definition of an unprivileged enemy belligerent, which (…) does not invoke the Islamic faith nor does it operate to limit an individual's ability to practice the Islamic faith or be a Muslim”, it held that the MCA “does not single out or discriminate against Muslim or Muslim men”. United States Military Commission, United States of America v. Al-Nashiri, AE 295B, “Ruling – Defense Motion to Dismiss All Charges Because the Military Commissions Act Was Designed to Discriminate Against Muslims”, 22 September 2014. 145