HAMDAN v. GATES
565 F.Supp.2d 130 (2008)
United States District Court, District of Columbia.
July 18, 2008.
I find that Hamdan's chances of prevailing on the merits of his prayer for injunctive relief are uncertain; that he has shown no public interest reason for an injunction, see Khadr, 529 F.3d at 1118; that the disruption that would be caused by a last-minute delay of his trial would be significant; and that the irreparable injuries he asserts do not outweigh the other preliminary injunction factors.
The eyes of the world are on Guantanamo Bay. Justice must be done there, and must be seen to be done there, fairly and impartially. But Article III judges do not have a monopoly on justice, or on constitutional learning. A real judge is presiding over the pretrial proceedings in Hamdan's case and will preside over the trial. He will have difficult decisions to make, as judges do in nearly all trials. The questions of whether Hamdan is being tried ex post facto for new offenses, whether and for what purposes coerced testimony will be received in evidence, and whether and for what purpose hearsay evidence will be received, are of particular sensitivity. If the Military Commission judge gets it wrong, his error may be corrected by the CMCR. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit. And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.
The motion for preliminary injunction, [Dkt. # 92], is denied.
1. Contrary to the government's insistence that habeas is solely concerned with release, Opp. Memo, at 16-17, this grant of a petition for habeas corpus did not involve Hamdan's release.
2. The Court ignored my conclusion that Hamdan should be put before a tribunal that would determine whether he was a prisoner of war.
3. The MCA purports to bar defendants from asserting defenses or invoking rights based on the Geneva Conventions. See 10 U.S.C. § 948b(g). Should Hamdan be convicted, nothing in the MCA bars him from asserting on appeal, as he does in this motion, that § 948b(g) violates the Supremacy Clause and the separation of powers. See United States v. Klein,80 U.S. 128, 13 Wall. 128, 2p L.Ed. 519 (1872).
4. The government euphemistically calls this section a "review channeling provision."