                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 OMAR KHADR,

           Petitioner,
                  v.                                  Civil Action No. 04-1136 (JDB)
 BARACK H. OBAMA, et al.,
                                                      Misc. No. 08-0442 (TFH)
           Respondents.



                                 MEMORANDUM OPINION

       The Court, and the parties, are by now familiar with the facts animating this action. See

Khadr v. Bush, 587 F. Supp. 2d 225, 227-29 (D.D.C. 2008) [hereinafter Khadr I]; see also Khadr

v. United States, 529 F.3d 1112, 1114-15 (D.C. Cir. 2008) [hereinafter Khadr II]. Omar Khadr

has been incarcerated since 2002 at the United States Naval Base in Guantánamo Bay, Cuba,

after his capture as a juvenile during a firefight in Afghanistan in which several members of the

U.S.-led coalition were killed or injured. See Khadr I, 587 F. Supp. 2d. at 228. In 2004, he filed

a habeas petition with this Court. While that petition was pending, Khadr was brought before a

Combatant Status Review Tribunal, which designated him as an enemy combatant. See id. The

government subsequently charged him with war crimes and referred him for trial before a

military commission. See id. That trial is set to begin on August 10, 2010.1

       In light of the parallel military commission proceedings, and relying on Schlesinger v.

Councilman, 420 U.S. 738 (1975), the Court previously abstained from resolving Khadr's habeas



       1
        The proceeding was originally scheduled to begin on October 8, 2008, but has been
continued several times. See Khadr I, 587 F. Supp. 2d at 228-29 & n.2.
petition, and therefore stayed the action. See Khadr I, 587 F. Supp. 2d at 231. The Court

observed that the claims in Khadr's petition "have been, will be, or, at the very least, can be

raised in the military commission proceeding and the subsequent appeals process." Id. at 230-31.

Because comity requires federal courts to give "due respect to the autonomous military judicial

system created by Congress," New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997), the Court

concluded that it must stay Khadr's petition pending the end of military commission proceedings

and the subsequent appeals process, Khadr I, 587 F. Supp. 2d at 234.2

        Faced once again with an impending military commission trial, Khadr now seeks leave to

file a second amended habeas petition, which, according to him, raises claims that no longer

warrant "a stay or abstention under Councilman." Pet'r's Mem. in Supp. of Mot. for Leave to File

("Pet'r's Habeas Mem.") [Docket Entry 297], at 1. That petition asks, among other things, for this

Court to enjoin the military commission's proceedings against Khadr, see Proposed Second

Amended Habeas Pet. [Docket Entry 298], Prayer ¶ 5, and to "order Respondents to release

Petitioner from his current unlawful detention," id. at ¶ 1. Khadr also asks the Court to lift the

stay. See Pet'r's Mem. in Supp. of Mot. to Lift the Stay ("Pet'r's Stay Mem.") [Docket Entry 305],

at 2.

        Upon careful consideration of the motions, the parties' several memoranda, the applicable

law, and the entire record herein, the Court will grant Khadr's motion for leave to file his second

amended habeas petition, but will deny his motion to lift the stay.



        2
         The Court also dismissed Khadr's argument "that even if there is some lawful basis for
his detention, he cannot be detained . . . as an adult because he was a juvenile at the time of
capture." Khadr, 587 F. Supp. 2d at 229-30. It found that this argument was a "non-core habeas
claim relating to 'conditions of confinement'" and therefore was barred by statute. Id. at 236.

                                                 -2-
                                                   I.

        Khadr may amend his petition for habeas corpus "under the terms set by [Federal Rule of

Civil Procedure] 15(a)." United States v. Hicks, 283 F.3d 380, 386 (D.C. Cir. 2002). Under that

rule, "leave to amend a complaint should be freely given in the absence of undue delay, bad faith,

undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility."

Richardson v. United States, 193 F.3d 545, 549 (D.C. Cir. 1999); see also Fed. R. Civ. P.

15(a)(2) ("The court should freely give leave [to amend the complaint] when justice so

requires"). Rule 15(a)'s "'permissive approach' . . . applies with equal force to" motions to amend

a habeas petition. Hicks, 283 F.3d at 386.

        Khadr contends that his second amended habeas petition satisfies Rule 15(a) because it

"address[es] substantive changes to the law," "reflects newly discovered evidence," and "includes

recent developments as to [Khadr's] pending military trial," all of which "substantially affect the

court's jurisdiction over the case and the merits of [Khadr's] arguments." Pet'r's' Habeas Mem. at

3-4. Permitting him to file his new habeas petition, he urges, would not unduly prejudice the

government "because the amendments are timely and made in response to recent changes in the

law." Id. at 4.

        The government does not challenge Khadr's contention that his proposed habeas petition

addresses new evidence and new law, or that permitting it would not be prejudicial. Rather, the

government asserts that "any amendment to include Petitioner's new allegations would be futile

because the Second Amended Petition would independently support abstention under

Councilman." Resp'ts' Opp'n to Pet'r's Habeas Mot. ("Resp'ts' Habeas Opp'n") [Docket Entry

301], at 4; see also id. at 3 ("Petitioner's habeas case in this Court remains fully subject to the


                                                  -3-
Stay Order, and there is no basis for seeking to amend his Petition while the stay remains in

effect.").

        The government paints futility with too broad a brush. A motion to amend a complaint is

futile "if the proposed claim would not survive a motion to dismiss," James Madison Ltd. by

Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996), or if there is "little chance" the plaintiff

would succeed on his claim, Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.

Cir. 1996). Here, the government does not contend that Khadr's habeas petition merits dismissal,

but instead only suggests that it should be stayed under Councilman. See Resp'ts' Habeas Opp'n

at 3-4. Further, "[t]he fact that the case might then be stayed . . . does not change the fact that

[Khadr's] proposed amendment creates a viable cause of action on which he may proceed." Kelly

v. Barreto, Civ. A. No. 05-0900, 2006 WL 2568443, at *2 (D.D.C. Sept. 5, 2006); see also Kane

v. Rose, 259 Fed. Appx. 258, 260-61 (11th Cir. 2007) ("It is apparent . . .that [a] stay does not

render [a party's] claims futile for all time.") That is, even if a military commission addresses the

arguments in Khadr's habeas petition in the first instance, this Court nevertheless also may have

an opportunity to do so in a habeas proceeding following the conclusion of the military

commission proceedings. See Al-Odah v. Bush, 593 F. Supp. 2d 53, 60 (D.D.C. 2009).3

Accordingly, the Court will grant Khadr leave to file his proposed second amended habeas

petition.



        3
          If Khadr's habeas petition were futile, Khadr would be unable to refile it even after the
end of the military commission proceedings. But the government implicitly recognizes that this
is not the case: "Respondents . . . would not oppose a denial without prejudice to Petitioner's
refiling his motion for leave to file an amended habeas petition, if appropriate, should the stay be
lifted once the pending military commission proceedings against Petitioner and any subsequent
appeal as of right to the D.C. Circuit have been completed." Resp't's Habeas Opp'n at 6.

                                                  -4-
                                                  II.

       The Court next turns to whether Khadr's second amended habeas petition warrants

abstention under Councilman. The claims in that petition both replicate and supplement the

claims Khadr raised in his first amended habeas petition, for which the Court found Councilman

abstention appropriate.

       "[F]ederal courts normally will not entertain habeas petitions by military prisoners unless

all available military remedies have been exhausted." Councilman, 420 U.S. at 758; see also Al

Odah, 593 F. Supp. 2d at 57 ("Courts ordinarily abstain from considering habeas petitions or

requests for other equitable relief prior to the conclusion of a defendant's criminal proceedings.").

This is so because "implicit in the Congressional scheme" creating the military court system is

the view that the "system generally is adequate to and responsibly will perform its assigned task."

Councilman, 420 U.S. at 758; see also id. at 759-60 ("We see no injustice in requiring respondent

to submit to a system established by Congress and carefully designed to protect not only military

interests but his legitimate interests as well."). Abstention, then, ensures that federal courts

respect Congress's decision to "create[] an integrated system of military courts and review

procedures." Id. at 758.4

                                                  A.

       As an initial matter, Khadr contends that Councilman is inapplicable to his second

amended habeas petition because Congress has demonstrated its intent for district courts to hear



       4
          Councilman also recognized that military discipline and the efficient operations of the
military itself are best served if the military court system acts without regular interference from
civilian courts. See Councilman, 420 U.S. at 752, 757. Because Khadr is not a member of the
U.S. military, this consideration is inapposite here.

                                                 -5-
habeas petitions brought by detainees prior to the start of military commission proceedings. See

Pet'r's Stay Mem. at 5. According to him, "[w]hen this Court last considered the Councilman

issue . . . , Congress had codified the military commission system and expressly limited judicial

review of military commission proceedings to post-conviction appellate review before the D.C.

Circuit." Id. (citing Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600

(2006) (codified at 10 U.S.C. §950j(b)).5 But the Military Commissions Act of 2009, Pub. L.

No. 111-84, 123 Stat. 2190 (2009) -- which amended the Military Commissions Act of 2006 --

removed section 950j(b). Khadr therefore contends that the Military Commissions Act of 2009

"evinces Congressional intention for civilian courts to hear claims arising out of the military

commission process." Pet'r's Stay Mem. at 6.6

       This is incorrect. Section 950j(b) actually only dealt with the review of military

commission proceedings, not with habeas jurisdiction. But even if by removing section 950j(b)

Congress gave district courts the jurisdiction to hear habeas petitions brought by detainees facing

military commission proceedings, that is of no help to Khadr here. Whether this Court has

jurisdiction to hear Khadr's habeas petition is entirely separate from whether Councilman



       5
         The Court did not reach the question whether section 950j(b) precluded it from
considering Khadr's habeas petition when it previously stayed that petition. See Khadr, 587 F.
Supp. 2d at 230 n.4.
       6
         Khadr also asserts that by eliding section 950j(b), Congress has put Khadr in the same
position as the petitioner in Hamdan v. Rumsfeld (Hamdan I), 548 U.S. 557 (2006), for whom
Councilman abstention did not bar his habeas petition. See Pet'r's Stay Mem. at 6. Not so.
Councilman abstention was unavailable in Hamdan I because "neither of the comity
considerations identified in Councilman weigh[ed] in favor of abstention." Hamdan I, 548 U.S.
at 587. Most tellingly, "the tribunal convened to try Hamdan [was] not part of the integrated
system of military courts, complete with independent review panels, that Congress has
established." Id. Accordingly, Hamdan I is inapposite to Khadr's challenge.

                                                -6-
abstention is appropriate. Indeed, Councilman provides a ready-response to Khadr's argument:

"Our holding that the District Court had subject-matter jurisdiction . . . does not carry with it the

further conclusion that the District Court properly could reach the merits of Councilman's claim."

Councilman, 420 U.S. at 754. This is so because abstention is "a question concerned, not with

the limited jurisdiction conferred on the federal courts, but with whether consistently with the

principles governing equitable relief the court may exercise its remedial powers." Id. Hence,

even if the Military Commissions Act of 2009 could be read to grant the Court jurisdiction to

hear pre-conviction habeas petitions brought by detainees subject to military commission

proceedings, the Court still must assess whether exercising that power is consistent with the

respect due to a congressionally-created military court system.

                                                  B.

       Councilman "abstention is appropriate only to the extent that this Court's consideration of

[Khadr's second amended habeas petition] would interfere with the military commission

proceeding." Khadr I, 587 F. Supp. 2d at 230. Such interference is possible where the claims

raised in a habeas petition could overlap with the military commission's inquiries. See Al Odah,

593 F. Supp. 2d at 59; Khadr I, 587 F. Supp. 2d at 230. Here, Khadr does not dispute that the

claims he raises in his second amended habeas petition can be raised in his military commission

proceedings and the subsequent appeals process. Nor, does it seem, could he. For example, the

Court concluded in its previous opinion staying this case that Khadr's challenges to the military

commission's jurisdiction to try him "[h]ad already been raised before the military commission,

and even if not raised again during trial, . . . will be subject to review on appeal." Khadr I, 587 F.

Supp. 2d at 230-31; see also Khadr II, 529 F.3d at 1119 (Khadr will have opportunity to


                                                 -7-
challenge the military commission's jurisdictional findings in a post-judgment appeal). That is

still true. And the remaining claims in Khadr's habeas petition may be litigated in the military

commission. See Hamdam v. Gates (Hamdan II), 565 F. Supp. 2d 130, 137 (D.D.C. 2008)

(military commission can evaluate a petitioner's challenges to charged offenses and evidence);

see also Al Odah, 593 F. Supp. 2d at 59 ("The Court's proceedings may also produce rulings on

the production of discovery and/or exculpatory information that diverge from those of the

military commissions."). The Court therefore is persuaded that Khadr's habeas proceeding before

this Court could interfere with his ongoing military commission proceeding.

       Because of this potential interference, the Court would normally abstain from resolving

Khadr's habeas petition given the "due respect" it owes to "the autonomous military judicial

system created by Congress." New, 129 F.3d at 643; accord Councilman, 420 U.S. at 758.

Indeed, "it must be assumed that the military court system will vindicate [Khadr's] constitutional

rights." Councilman, 320 U.S. at 758.7 Khadr contends, however, that here this "assumption is

unwarranted." Pet'r's Reply in Supp. of Mot. to Lift Stay ("Pet'r's Stay Reply") [Docket Entry

309], at 6. In his view, the military commission convened to try him is unconstitutional because

it does not have procedures precisely replicating those available at civilian criminal trials. See id.

at 7; see also id. at 6 (Khadr "was denied due process of law and assistance of counsel during the

Combatant Status Review Tribunal").

       Khadr recognizes that the Military Commissions Act of 2009 gives a defendant "[t]he



       7
          "Although Councilman discussed this comity-based consideration in the context of a
military justice system designed by Congress to try members of the U.S. military, the
consideration is equally, if not more, relevant when Congress designs a military justice system to
try alien unlawful enemy combatants." Khadr I, 587 F. Supp. at 231 n.6.

                                                 -8-
opportunity to obtain witnesses and evidence . . . comparable to the opportunity available to a

criminal defendant in a court of the United States under Article III of the Constitution," 10

U.S.C. § 949j(a), but he criticizes the fact that the procedures are not "equal" to those available in

civilian criminal trials, see Pet'r's Stay Reply at 9. For example, he offers that the Military

Commissions Act of 2009 "allows the prosecution to introduce into evidence involuntary

statements that [Khadr] made at or near the point of capture." Id. And he contends that he is

without a "Sixth Amendment right to confront both witnesses and physical evidence used against

him at trial." Id. at 8.

        Khadr, however, points the Court to no authority demonstrating that a military

commission's constitutionality turns on whether it offers the full panoply of protections available

at civilian criminal trials. Indeed, the military court system that Councilman deemed sufficient

"to vindicate servicemen's constitutional rights" itself did not include all the protections available

at civilian criminal trials. See Whelchel v. McDonald, 340 U.S. 122, 126-27 (1950) ("Petitioner

can gain no support from the analogy of trial by jury in the civil courts. The right to trial by jury

guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military

commissions."). Put simply, the system established by the Military Commissions Act of 2009 is

worthy of respect "because it provides that [Khadr] 'is to face a military commission designed by

a Congress that acted according to guidelines laid down by the Supreme Court.'" Khadr I, 587 F.

Supp. 2d at 231 (quoting Hamdan II, 565 F. Supp. 3d at 136).

        Moreover, the Constitution does not require that every protection available in criminal

trials must apply in military commission proceedings for Guantánamo detainees. See Hamdan I,

548 U.S. at 623 ("The President here has determined . . . that it is impracticable to apply the rules


                                                 -9-
and principles of law that govern the trial of criminal cases in the United States district courts . . .

to Hamdan's commission. We assume that complete deference is owed that determination."

(internal quotation marks and citation omitted)) (plurality opinion);8 cf. Boumediene v. Bush,

128 S. Ct. 2229, 2270 (2008) ("Habeas corpus proceedings need not resemble a criminal trial,

even when the detention is by executive order."). Indeed, in the related context of habeas

proceedings for Guantánamo detainees, the D.C. Circuit has concluded that habeas review "need

not match the procedures developed by Congress and the courts specifically for habeas

challenges to criminal convictions." Al-Bihani v. Obama, 590 F.3d 866, 876 (D.C. Cir. 2010);

see also Al-Adahi v. Obama, --- F.3d ----, 2010 WL 2756551, at *9 n.6 (D.C. Cir. 2010) ("His

claim that statements he made outside the presence of counsel should be suppressed also fails:

Al-Adahi cites no precedent extending the Miranda v. Arizona, 384 U.S. 436 (1966), line of

cases beyond the criminal context."); id. ("Al-Bihani also forecloses Al-Adahi's argument that

admitting hearsay violated his Sixth Amendment right of confrontation.").

        Critical to Councilman's conclusion that the military court system would vindicate a

serviceman's constitutional rights was the fact that the system included review by "the Court of

Military Appeals consisting of civilian judges completely removed from all military influence or

persuasion." Councilman, 420 U.S. at 758 (internal quotation marks omitted); cf. Hamdan I, 548

U.S. at 587 (Councilman abstention inappropriate because the military commissions convened by

the President were "not part of the integrated system of military courts, complete with



        8
         Although this part of Justice Stevens's majority opinion garnered only four votes, the
dissent endorsed this conclusion. See Hamdan I, 548 U.S. at 721 ("[T]he procedures to be
employed by Hamdan's commission afford all the judicial guarantees which are recognized as
indispensable by civilized peoples." (internal quotation marks omitted)) (Thomas, J., dissenting).

                                                  -10-
independent review panels that Congress had established"). Similar review is available under the

Military Commissions Act of 2009: every defendant has an appeal of right to the D.C. Circuit,

which has "exclusive jurisdiction to determine the validity of a final judgment rendered by a

military commission," 10 U.S.C. § 950g(a), and may consider "all matters of law, including the

sufficiency of the evidence to support the verdict," id. § 950g(d).9 Further, "the Supreme Court

may review by writ of certiorari . . . the final judgment of the [D.C. Circuit]." Id. § 950g(e).

       Every individual tried by a military commission, then, may obtain review of his case by

"civilian judges 'completely removed from all military influence or persuasion.'" Khadr I, 587 F.

Supp. 2d at 230 (quoting Councilman, 420 U.S. at 758). As the Hamdan II court explained:

       A real judge is presiding over the pretrial proceedings in Hamdan's case and will
       preside over the trial . . . . If the Military Commission judge gets it wrong, his
       error may be corrected by the [Court of Military Commission Review]. If the
       [Court of Military Commission Review] 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.

Hamdan II, 565 F. Supp. 2d at 137. The review procedures created by the Military Commissions

Act of 2009 have "the structural insulation from military influence that characterizes the Court of

Appeals for the Armed Forces," and thus bear sufficient "conceptual similarity to state courts to

warrant invocation of abstention principles." Hamdan I, 548 U.S. at 587-88.10 Hence, contrary


       9
        A defendant may also first appeal to the Court of Military Commission Review,
composed of three commissioned officers of the armed forces. See 10 U.S.C. § 950f. That court
"may act only with respect to the findings and sentence as approved by the [military
commission]," and "may weigh the evidence, judge the credibility of witnesses, and determine
controverted questions of fact." Id. § 950f(d).
       10
          Khadr also contends that "abstention is not warranted because the military commissions
do not offer the remedy of release that [Khadr] seeks in his habeas proceeding." Pet'r's Stay
Mem. at 11. But the fact that "military commissions . . . are convened to consider whether [an
individual has] violated the laws of war and not whether [he] should be released from custody"

                                                -11-
to Khadr's arguments, this Court may assume that the military court system created by the

Military Commissions Act of 2009 will vindicate Khadr's rights. See Councilman, 420 U.S. at

758; accord Khadr I, 587 F. Supp. 2d at 231.

                                                 C.

       Abstention is therefore warranted in this case. Nevertheless, Councilman and its progeny

recognize an exception to abstention where a petitioner asserts "arguments that a military tribunal

lacks personal jurisdiction over [the defendant]." Hamdan I, 548 U.S. at 589 n.20. Under

Councilman, abstention is inappropriate where a petitioner presents "a constitutional question

[that] turn[s] on the status of the persons as to whom the military asserted its power."

Councilman, 420 U.S. at 759; accord Hamdan I, 548 U.S. at 589 (exception to Councilman

abstention where defendant "raise[s] substantial arguments that a military tribunal lacks personal

jurisdiction over [him]"); see also Councilman, 420 U.S. at 759 ("The issues presented concerned

not only the military court's jurisdiction, but also whether under Art. I Congress could allow the

military to interfere with the liberty of civilians even for the limited purpose of forcing them to

answer to the military justice system.").

       Here, Khadr contends that two of the claims asserted in his second amended habeas

petition fall within Councilman's exception. First, he suggests that his status as a juvenile at the

time of his capture in Afghanistan precludes the military commission from exercising jurisdiction


does not alter the abstention analysis. Al Odah, 593 F. Supp. 2d at 59 ("The Court therefore
rejects Petitioners' argument that the differences between the relief sought before this Court (their
release) and the military commissions (their non-conviction) distinguishes Councilman or
otherwise suggests that this Court should not defer to the system of military commissions
designed by Congress and the President."). Moreover, if Khadr is acquitted but remains
incarcerated, as the government suggests he can be, he may challenge that continued detention
through habeas.

                                                -12-
over him. See Pet'r's Stay Reply at 13. But this Court already concluded, when Khadr raised this

assertion in opposition to the government's previous motion asking the Court to abstain under

Councilman, that this argument "does not raise a substantial constitutional challenge based on

status within the narrow exception to Councilman abstention." Khadr I, 587 F. Supp. 2d at 234;

see also id. at 232 ("At the motions hearing, petitioner's counsel conceded that Khadr's

status-based challenge is statutory rather than constitutional in nature . . . ."). Khadr has offered

no reason why the Court should revisit this holding.

       Second, Khadr offers that Congress's creation of military commissions to try law of war

violations exceeds its constitutional authority. See Pet'r's Stay Reply at 15 ("By creating the

'enemy belligerent' status, [Congress] determines the reach of military jurisdiction based not upon

a person's military membership, but rather on the conduct the defendant is accused of committing

. . . ."). The Supreme Court, however, has already concluded that, consistent with the

Constitution, Congress may authorize trial by military commission of enemy combatants accused

of law of war violations. See Ex parte Quirin, 317 U.S. 1, 28-31 (1942); see also Hamdan I, 548

U.S. at 636 ("Nothing prevents the President from returning to Congress to seek the authority he

believes necessary [to create military commissions].") (Breyer, J., concurring); W. Winthrop,

Military Law and Precedent 831 (rev. 2d ed. 1920) ("[I]n general, it is those provisions of the

Constitution which empower Congress to 'declare war' and 'raise armies,' and which, in

authorizing the initiation of war, authorize the employment of all necessary and proper agencies

for its due prosecution, from which this tribunal derives its original sanction."). See generally

U.S. Const., Art. I, § 8 cl. 9 (Congress may "define and punish . . . Offenses against the Law of

Nations"). The fact that Congress did so here, then, raises no substantial constitutional question.


                                                 -13-
See Al Odah, 593 F. Supp. 2d at 60.11

                                   *       *       *       *       *

       By this decision, the Court does not ignore the challenges Khadr asserts in his second

amended habeas petition. Indeed, as he states, "[t]he public has a substantial interest in ensuring

that Guantánamo detainees are tried in a fair and constitutionally adequate forum." Pet'r's Stay

Reply at 16. But "[t]here is no substantial public interest at stake in this case that distinguishes it

from the multitude of criminal cases for which post-judgment review of procedural and

jurisdictional decisions has been found effective." Khadr II, 529 F.3d at 1118; see also id. (the

interest in ensuring that a criminal proceeding is just "does not warrant our interruption of this

criminal proceeding just because it is a military commission"). Khadr's "claims of unlawfulness

. . . are all claims that should or must be decided in the first instance by the Military Commission,

and then raised before the D.C. Circuit, as necessary, on appeal." Hamdan II, 565 F. Supp. 2d at

136. Accordingly, Khadr's second amended habeas petition warrants Councilman abstention.

                                                 III.

       For the foregoing reasons, the Court will grant Khadr's motion for leave to file a second

amended habeas petition, but will deny his motion to lift the stay. A separate Order accompanies

this Memorandum Opinion.



       11
          To the extent that Khadr is arguing that the military has incorrectly classified him as an
enemy belligerent, "that argument may be fully addressed by the military commissions in the first
instance, and then addressed, if necessary, by this Court [in habeas proceedings] following the
conclusion of the military commission proceedings." Al Odah, 593 F. Supp. 2d at 60. Nor will
Khadr be irreparably harmed by permitting the military commission to fully adjudicate the
charges against him in the first instance. See Al Odah, 593 F. Supp. 2d at 58; cf. Younger v.
Harris, 401 U.S. 37, 46 (1971) (no injunction against state criminal proceeding even if defendant
believes statute he is prosecuted under is unconstitutional).

                                                 -14-
                                   /s/ John D. Bates
                                   JOHN D. BATES
                              United States District Judge

Dated: July 20, 2010




                       -15-
