[JURIST] A US district court judge on Thursday rejected a bid [PDF text] to stay the trial of Guantanamo Bay detainee Salim Ahmed Hamdan [DOD materials; JURIST news archive], ruling that a civilian court should refrain from review until the military commission had issued a "final judgment." Hamdan's lawyers had argued [motion, PDF; memorandum, PDF] that the military trial should be postponed until the court rules on the jurisdiction and legality of Hamdan's military commission, but the Department of Justice responded [JURIST report] that Boumediene v. Bush [opinion, PDF; JURIST report] only gave detainees the right to challenge their detention, not to challenge their trials once they became defendants. In his written opinion released on Friday, Judge James Robertson explained:

Hamdan's focus now is not on post-trial habeas, of course. What he seeks is pre-trial relief to avoid being subjected to a trial that, in his submission, will be unlawful. His claims of unlawfulness, however, are all claims that should or must be decided in the first instance by the Military Commission, and then raised before the DC Circuit, as necessary, on appeal. The Supreme Court's decision in Councilman requires federal courts to give "due respect to the autonomous military judicial system created by Congress." Councilman involved courtmartial proceedings against a US service member, to be sure, and not a military commission, but its central rationale is applicable here. Councilman requires the courts to respect the balance that Congress has struck in creating a military justice system, "a critical element of which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion." [citations omitted]

Robertson also relied on the DC Circuit Court of Appeal's recent ruling [JURIST report] in Khadr v. United States [PDF text], where it was held that pursuant to the Military Commissions Act of 2006 (MCA) [text, PDF], all challenges raised to a military commission trial can be only be addressed after a final judgment is rendered. Hamdan's trial, the first war crimes trial at Guantanamo Bay, is set to begin Monday. AP has more.

Earlier this week, a military judge denied [JURIST report] Hamdan's motion to dismiss, holding that the military commission assigned to his trial has the appropriate jurisdiction to hear the case. The judge rejected [ruling, PDF] Hamdan's argument [motions, PDF] that because the charges of conspiracy and providing material support did not exist at the time Hamdan allegedly committed them, they violated the ex post facto clause of the US Constitution and Common Article 3 of the Geneva Convention [texts], and therefore could not be applied retroactively. The judge deferred to Congress' express declaration, made when passing the MCA, that it did not create "new crimes that did not exist before its enactment."