ABDULRAZZAQ v. TRUMP et al
Filing
160
MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/26/2019. (lcegs1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
NASHWAN AL-RAMER ABDULRAZZAQ
)
)
Plaintiff,
)
)
v.
)Civil Action No. 17-1928 (EGS)
)
DONALD J. TRUMP, et al.,
)
)
Defendants.
)
_________________________________)
MEMORANDUM OPINION
Petitioner Nashwan Al-Ramer Abdulrazzaq, a male Iraqi
citizen detained at a prison facility in Guantanamo Bay, Cuba
(“Guantanamo”), is awaiting trial before a military commission
on non-capital charges of Denying Quarter, Attacking Protected
Property, Using Treachery or Perfidity, Attempted Use of
Treachery or Perfidity, and Conspiracy to Violate the Laws of
War. Mot. to Dismiss Pet’r’s Second Am. Pet. for a Writ of
Habeas Corpus (“Mot. to Dismiss”), ECF No. 47 at 17. 1
On November 29, 2017, Petitioner filed a Second Amended
Petition for a Writ of Habeas Corpus, raising four claims:
(1) the conditions of his confinement at Guantanamo violate the
Eighth Amendment; (2) the structure of the military commissions
When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
1
process violates the Due Process Clause of the Fifth Amendment
(“conflict-of-interest” claim); (3) discrimination against him
by reason of his nationality in violation of the equal
protection guarantees in the Fifth Amendment (“equal protection”
claim); and (4) violation of his right to counsel guaranteed by
the Sixth Amendment and the Military Commissions Act (“MCA”)
(“interference-with-counsel-communications” claim). Pet’r’s
Opp’n to Resp’ts’ Mot. to Dismiss Pet’r’s Second Am. Pet. for a
Writ of Habeas Corpus, ECF No. 59 at 6-7.
Pending before the Court is Petitioner’s motion to lift
stay of proceedings and for preliminary injunction. Pet’r’s Mot.
to Lift Stay of Proceedings and for Prelim. Inj. (“MPI”), ECF
No. 147. 2 In view of the Court’s forthcoming memorandum opinion
ruling on Respondent’s motion to dismiss, the Court HOLDS IN
ABEYANCE Petitioner’s motion to lift the stay. With regard to
his motion for preliminary injunction, Petitioner requests that
the Court preliminarily enjoin further proceedings in the
military commission pending this Court’s determination that he
is medically competent to stand trial. Id. at 1. Upon careful
consideration of the motion, the response, the reply thereto,
On August 26, 2019, Petitioner withdrew his Motion for
Temporary Restraining Order referenced in his Motion for
Preliminary Injunction. Notice of Classified Filing, ECF No.
151.
2
2
the applicable law, and for the reasons explained below, the
Court DENIES Petitioner’s motion for preliminary injunction.
I. Background
A.
Petitioner’s Military Commission Proceedings and
Medical Condition
On June 2, 2014, the Convening Authority 3 referred the
charges against Petitioner to a military commission for trial,
Mot. to Dismiss, ECF No. 47 at 17, and pretrial proceedings have
been ongoing since that time, Resp’t Opp’n to Pet’r’s Mot. to
Lift Stay and for Prelim. Injunction (“Opp’n”), ECF No. 149 at
6. Petitioner’s trial is scheduled to begin September 19, 2020.
Id. at 7.
Petitioner has been diagnosed “with stenosis of both his
lumbar and cervical spine, a degenerative condition,” Mot. to
Dismiss, ECF No. 47 at 20, and has undergone five surgeries
during his detention, MPI, ECF No. 147 at 8. Petitioner states
that “he remains disabled, in constant pain, and heavily
medicated with tranquilizers and painkillers to alleviate his
symptoms.” Id. at 4. Petitioner has sought the relief he seeks
before this Court–a medical competency hearing–more than once
before the military judge, but those requests have been denied.
Id. at 8. Petitioner is also dissatisfied with the military
The Convening Authority is the Defense Department official who
refers a case to trial. In re Al-Nashiri, 835 F.3d 110, 112
(D.C. Cir. 2016).
3
3
judge’s denial of his requests to present his own evidence
regarding his medical condition to counter that of the
Guantanamo medical officers. Id.
The impetus for the motion before the Court is Petitioner’s
dissatisfaction with the military judge’s response to his
medical condition during a military commission hearing session
on August 21, 2019. Id. at 4-5. 4 After approximately two hours of
the session, “Petitioner informed his defense counsel that he
was ‘in tremendous pain and cannot focus on what is being said
in court.’” Id. at 4 (quoting Tr., ECF No. 147-1 at 74). The
Court recessed for two hours, but Petitioner did not return to
court, choosing instead to “follow the proceedings on a closedcircuit video/audio feed” from the jumbo cell, 5 accompanied by
one of his counsel.” Id. Petitioner states that on “August 22,
2019, the military judge stated his intention to determine
whether Petitioner’s absence from the hearing yesterday (August
21) was voluntary, or based on medical incapacity, solely on the
basis of witnesses and evidence adduced by the government.” Id.
at 5. When Petitioner did not appear for the August 22, 2019
Petitioner contends that three motions currently pending before
the military commission are relevant to the instant motion. MPI,
ECF No. 147 at 7. These motions appear to concern potential
conflicts of interest on the part of a military judge and law
clerk and disqualification of the convening authority.
5 The jumbo cell is a facility that was constructed for
Petitioner’s use “to ensure [that he] can attend and participate
in commission proceedings.” Tr., ECF No. 147-1 at 174.
4
4
afternoon session, the military judge canceled testimony on
substantive matters after hearing representations from
Petitioner’s counsel that Petitioner was involuntarily absent as
a result of his medical condition. Opp’n, ECF No. 149 at 11.
II.
Analysis
A. Jurisdiction
As a preliminary matter, the parties disagree as to whether
this Court has jurisdiction to consider this request. Petitioner
argues that it does because the “gravamen” of his motion – “the
agony he regularly and predictably experiences when compelled to
attend hearings” is a condition of his confinement, which is
within the scope of habeas. Reply, ECF No. 152 at 3. Respondent
argues that the Court lacks jurisdiction to consider
Petitioner’s request for injunctive relief pursuant to 28 U.S.C.
§ 2241(e)(2) and/or 10 U.S.C. § 950g because his request for
this Court “to stop his military commission does not go to any
aspect of his confinement or its lawfulness . . . [but] concerns
only an aspect of his trial.” Opp’n, ECF No. 149 at 17. Because
the Court concludes that the abstention principles set forth in
In re Al-Nashiri are fatal to Petitioner’s ability to succeed on
the merits for the relief he seeks, the Court does not reach
whether it has subject matter jurisdiction to consider the
request. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to
5
choose among threshold grounds for denying audience to a case on
the merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 585 (1999))); see also In re Al-Nishiri, 835 F.3d 110, 117
n.1 (D.C. Cir. 2016) (“We need not weigh in on whether the
district court had subject matter jurisdiction to adjudicate AlNashiri’s motion for preliminary injunctive relief. Although the
government suggests in its briefing before us that Al-Nashiri’s
claim does not sound in habeas—a claim that calls into question
the district court’s statutory jurisdiction, see 28 U.S.C. §
2241(e)(2)—we affirm the denial of that motion for reasons we
explain below. Because the motion was properly denied on
threshold grounds, we need not consider the district court’s
subject matter jurisdiction any further.”) (citations omitted)).
B. Standard of Review
“‘A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his favor, and [4] that an injunction is in the public
interest.’” Aamer v. Obama, 742 F.3d 1023, 1039 (D.C. Cir. 2014)
(quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)
(alteration in original) (quoting Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008)). “The purpose of a
preliminary injunction is merely to preserve the relative
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positions of the parties until a trial on the merits can be
held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). It
is “an extraordinary and drastic remedy” and “should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (emphasis omitted). In this Circuit, the four factors
have typically been evaluated on a “sliding scale,” such that if
“the movant makes an unusually strong showing on one of the
factors, then it does not necessarily have to make as strong a
showing on another factor.” Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v.
Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.
Circuit has suggested that a positive showing on all four
preliminary injunction factors may be required.” Holmes v. FEC,
71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644
F.3d at 393 (“[W]e read Winter at least to suggest if not to
hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.”) (quotation
marks omitted). Nonetheless, “the Circuit has had no occasion to
decide this question because it has not yet encountered a postWinter case where a preliminary injunction motion survived the
less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F.
Supp. 3d 34, 46 n.2 (D.D.C. 2014). However, “when a plaintiff
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has not shown a likelihood of success on the merits, we need not
consider the other factors [required for a preliminary
injunction].” Greater New Orleans Fair Hous. Action Ctr. v. HUD,
639 F.3d 1078, 1088 (D.C. Cir. 2011).
1. Success on the Merits
“[T]he first and most important factor is whether
petitioners have established a likelihood of success on the
merits.” Aamer, 742 F.3d at 1038. Whether Petitioner can succeed
on the merits depends on whether this Court should abstain in
favor of ongoing military commission proceedings pursuant to In
re Al-Nashiri, 835 F.3d. 110 (D.C. Cir. 2016). In that case, the
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) held that “the system enacted to adjudicate
[Guantanamo detainees’] guilt . . . adequately protect[s]
[their] rights” and consequently, “judicial review should not
take place before that system has completed its work” subject to
limited exceptions. In re Al-Nashiri, 835 F.3d at 122, 124.
Here, the parties dispute whether the relief Petitioner seeks
falls within one of the limited exceptions.
Petitioner argues that because the pretrial procedures
cause Petitioner “agonizing pain and violate his rights to
bodily integrity and personal security without due process of
law,” this situation falls within an exception. Reply, ECF No.
152 at 2-3. He does not dispute that the relief he seeks does
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not fall within any of the narrow exceptions to abstention
recognized in In re Al-Nashiri, but argues that “it qualifies as
an exception nonetheless,” citing two Supreme Court cases.
Reply, ECF No. 152 at 9.
In Sell v. United States, 539 U.S. 166 (2003), the Supreme
Court considered whether the state Court of Appeals had
jurisdiction to consider an appeal of a pretrial order, and
consequently whether the Supreme Court itself had jurisdiction
to decide the question presented. In Sell, the appeal was of a
pretrial order requiring Mr. Sell to involuntarily receive
medication. Sell, 539 U.S. at 175. As to the appellate
jurisdiction, the Supreme Court stated that the pretrial order
fell within the “collateral order” exception to 28 U.S.C. §
1291, which authorizes appellate review of only final decisions
of district courts. Id. at 176. The Court reasoned that “[t]he
order (1) ‘conclusively determine[s] the disputed question,’
namely, whether Sell has a legal right to avoid forced
medication. Ibid. The order also (2) ‘resolve[s] an important
issue,’ for, as this Court’s cases make clear, involuntary
medical treatment raises questions of clear constitutional
importance.” Id. The Court also observed that “the basic issue—
whether Sell must undergo medication against his will—is
“completely separate from the merits of the action,” i.e.,
whether Sell is guilty or innocent of the crimes charged” as
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well as “from issues concerning trial procedures.” Id. The Court
concluded that “the issue is (3) ‘effectively unreviewable on
appeal from a final judgment.’ Ibid. By the time of trial Sell
will have undergone forced medication—the very harm that he
seeks to avoid. He cannot undo that harm even if he is
acquitted. Indeed, if he is acquitted, there will be no appeal
through which he might obtain review.” Id. at 176-77. Petitioner
argues that similar to Sell, whether he is medically competent
to stand trial is “an important issue” that is “completely
separate” from his innocence or guilt. Reply, ECF No. 152 at 11.
Furthermore, “by the time of trial . . . [he] will have
undergone . . . the very harm he seeks to avoid,” specifically
“the arbitrary and wonton [sic] imposition of pain amounting to
pretrial punishment.” Id.
In Winston v. Lee, 470 U.S. 753 (1985), the Supreme Court
considered whether “a State may consistently with the Fourth
Amendment compel a suspect to undergo [a specific type of]
surgery . . . in a search for evidence of a crime,”
specifically, “an object thought to be a bullet lodged under
[Petitioner’s] left collarbone.” Winston, 470 U.S. at 757.
Petitioner, through a habeas action, sought to enjoin the State
from compelling him to undergo the surgery. Id. at 758. Based on
the particular surgical procedure that would be required, the
Court held “that the proposed search in this case would be
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‘unreasonable’ under the Fourth Amendment. Id. at 766.
Petitioner relies on Winston and Sell to “establish first, that
Respondent’s list of appealable pretrial issues is not
exclusive, and second that the issue presented here—whether
Petitioner is suffering pretrial punishment—falls squarely
within their rationale.” Reply, ECF No. 152 at 12.
Petitioner’s reliance on Sell is misplaced for at least two
reasons. First, unlike in Sell, here there is no district court
pretrial order of which Petitioner seeks interlocutory appeal.
Second, while Petitioner argues that abstention is inappropriate
because otherwise he would be tried while being medically
incompetent, his medical condition is clearly “attendant” to the
resolution of the military commission proceeding because if the
military judge is wrong about Petitioner’s medical competence,
that can be remedied in the appellate process. In re Al-Nashiri,
835 F.3d at 129 (noting that “Al-Nashiri’s harms are ‘attendant
to resolution of his case in the military court system’ and, as
a result, do not render abstention inappropriate here”) (citing
Schlesinger v. Councilman, 420 U.S. 738, 758 (1975)). Petitioner
is correct that whether he is medically competent to stand trial
is “completely separate from the merits of the action,” but
again, this issue is reviewable on appeal. Nor does Winston help
Petitioner as the case concerns a pretrial Fourth Amendment
search, which is clearly distinguishable.
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Petitioner alleges that the military judge is being
“deliberately indifferent” to his medical condition. Reply, ECF
No. 152 at 13. However, the transcripts of the military
commission hearings Petitioner attached to his motion
demonstrate that the military judge has accommodated
Petitioner’s medical condition with regard to the proceedings in
general, and specifically during the session that was held on
August 21, 2019.
Regarding accommodations made in view of Petitioner’s
medical condition generally, the military judge stated as
follows:
Accommodations implemented over the past year,
based on complaints or requests by the
accused, include those discussed extensively
yesterday related to the jumbo cell. They
include also taking extended recesses in the
middle
of
the
day,
providing
multiple
transportation
platforms
to
make
[Petitioner’s] movements less aggravating,
alternating the days we are on the record and
in the commission session, having medical
personnel continuously onsite to administer
medication or aid to [Petitioner], encouraging
and
authorizing
[Petitioner]
to
change
positions throughout the hearings, placing a
hospital bed and a hospital chair in the
courtroom, and beginning the sessions later in
the morning to account for the time the
accused would have to get up to travel to the
commission and meet with his attorneys.
In support of these accommodations, in
addition to biweekly medical updates the
commission receives on [Petitioner’s] health,
the commission has, on numerous occasions,
received up-to-date testimony from treating
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physicians,
to
include
the
neurosurgeon
responsible for [Petitioner’s] care, to ensure
that they meet his medical needs.
Tr., ECF No 147-2 at 6-7. The military judge noted that
Petitioner proposed a new schedule for hearing sessions because
he now “indicates that he can travel on consecutive days, attend
for four hours on the record at a time, and start earlier than
previously requested” because “he often wakes early, takes
medication, starts out feeling good, but feels progressively
worse as the days go on. [Petitioner] represented, through
counsel, that he has had better success when starting earlier in
the day.” Id. at 5. In response, the military judge stated that
“the commission planned to begin at [8:00 a.m.] with daily
sessions and, with the exception of Sunday, as best we can,
limit our sessions to four hours. The schedule is going to be
subject to change at any point and should not be construed or
considered a long-term arrangement.” Id. at 8-9.
The August 21, 2019 session began at 9:18 a.m. Tr., ECF No.
147-1 at 1. The court took a recess from 10:24 a.m. until 10:37
a.m. in response to Petitioner’s request. Id. at 49. The court
took a second recess from 11:09 a.m. until 11:42 a.m. in
response to Petitioner’s request. Id. at 73. Following that
recess, Petitioner’s counsel informed the court that
Petitioner’s physical health was “rapidly deteriorating” and
that he was “in tremendous pain.” Id. at 74. Counsel stated that
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the pain medication Petitioner had taken—Valium and Percocet—had
worn off and requested an additional dose of Valium and three
hours of sleep before continuing the session. Id. at 75. Counsel
also stated that Petitioner’s “state of mind is completely
altered based on the medication he’s been taking.” Id. In
response, the military judge recessed from 11:54 a.m until 3:42
p.m. 6 Id. at 82. When the session reconvened, Counsel stated that
Petitioner was not present “because he is in excruciating pain,”
experiencing muscle spasms, unable to speak due to the pain, and
having difficulties maintaining conversation. Id. at 82-83.
Petitioner met with the Senior Medical Officer (“SMO”)
responsible for his medical care at some point during the
recess. Id. at 84. After recessing to ensure that Petitioner and
counsel could observe and hear proceedings from the jumbo cell,
albeit with a 15 to 30 second delay, the SMO was questioned by
the government, Petitioner, and the military judge regarding,
among other things, Petitioner’s medical condition. Id. at 91,
100, 104-150.
This record demonstrates that the military judge was
attentive and accommodating to Petitioner’s medical condition on
August 21, 2019. He recessed each time Petitioner requested to
The transcript indicates that there was a brief session from
12:06 p.m. until 12:17 pm for which no public transcript is
available. Tr., ECF No. 147-1 at 82.
6
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do so, including a recess of more than three and a half hours so
that Petitioner could sleep. He also ensured that Petitioner
could observe and listen to the late afternoon session with
counsel in the jumbo cell and counsel in the courtroom being
reachable from the jumbo cell.
To the extent Petitioner disagrees with the military
judge’s denials of his requests for a medical competency
determination, and to present his own evidence regarding his
medical condition to counter that of the Guantanamo medical
officers, he can seek appellate review within the system created
by the MCA. See In re Al-Nashiri, 835 F.3d at 122 (noting that
the review structure created in the MCA provides for (1) trial
presided over by a military judge; (2) review of a conviction by
the Convening Authority, who has the authority to set it aside
or reduce it to a lesser-included offense; (3) review of a
conviction by the Court of Military Commission Review (“CMCR”);
(4) appeal of the CMCR decision to the United States Court of
Appeals for the District of Columbia Circuit; and (5) the D.C.
Circuit’s ruling can be challenged via a petition for a writ of
certiorari in the Supreme Court). Petitioner does not claim that
he will be unable to seek appellate review of the military
judge’s decisions with which he disagrees. See generally MPI,
ECF No. 147; Reply, ECF No. 152.
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Petitioner asks this Court for extraordinary relief—to
enjoin further proceedings in the military commission pending
this Court’s determination of Petitioner’s medical competence to
stand trial, and to recognize a new exception to the abstention
principles set forth in In re Al-Nashiri. For all of the reasons
discussed above, the Court declines to do so and finds that
Petitioner has not established a likelihood of success on the
merits.
2. The Remaining Factors: Irreparable Harm, the Balance of
the Equities, and the Public Interest
Although Petitioner has not established a likelihood of
success on the merits, the Court will briefly discuss the
remaining factors. See Aamer, 742 F.3d at 1043-44 (briefly
discussing the three remaining factors after determining that
Petitioners could not establish a likelihood of success on the
merits). Petitioner asserts that he “is sustaining at least
three irreparable injuries: unnecessary physical pain, the right
not to be tried while medically incompetent, and a continuing
violation of his right not to be tried at all by military
commission” and that he “has no adequate remedy at law for these
injuries.” MPI, ECF No. 147 at 11. Respondent argues that
Petitioner has not shown that he will suffer irreparable harm
that is “both certain and great.” Opp’n, ECF No 149 at 31
(quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
16
1985).
Petitioner observes that as he has no speedy trial rights
under the MCA, and that “[t]he time necessary for discovery,
expert examination and consultation, and a hearing will not be
long in comparison to Respondents’ lengthy delay in honoring any
of his other rights,” noting that it is in Respondents’ interest
for his competence to be determined prior to trial. MPI, ECF No.
147 at 11. With regard to the public interest, Petitioner argues
that “no verdict against an incompetent defendant can be
considered reliable” and that from an appearance of justice
perspective, “the sight of the defendant writhing in agony,” the
multiple doses of medication he requires to attend hearings, and
him sleeping on a hospital gurney during breaks, is in no one’s
interest. Id. at 11-12. Petitioner also argues that the public
is entitled to know whether his medical treatment is adequate.
Id. at 12.
Respondent argues that “the balance of harms in this matter
tips decidedly against the issuance of an injunction” because
enjoining the military commission proceeding would harm the
Government’s interest for the following reasons: (1) persons
such as Petitioner charged with war crimes need to be brought to
trial in a timely fashion; (2) substantial resources have been
devoted to these military commission proceedings including
(i) accommodating his medical condition; (ii) facilitating his
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attendance at proceedings including constructing the jumbo cell;
and (3) the military judge has accommodated Petitioner’s
scheduling requests, and provided him with in-courtroom and
remote aid and equipment to facilitate his participation in the
proceedings. Opp’n, ECF No. 149 at 30-31. Respondent further
argues that “the public has a strong interest in seeing such
individuals brought to justice as soon as possible.” Id. at 31.
Here, the three remaining factors do not strongly favor
issuing an injunction. Sherley, 644 F.3d at 393, 398. The Court
agrees that Petitioner has an important interest in avoiding
“arbitrary and wanton” physical pain, and the Court does not by
any means discount Petitioner’s allegations of the chronic and
debilitating pain he experiences. As discussed above, however,
the military judge has been responsive and accommodating to
Petitioner’s medical condition. The Court rejects Petitioner’s
assertion that he has no adequate remedy at law for the right
not to be tried while medically incompetent. As discussed above,
whether Petitioner was medically competent to stand trial can be
raised on appeal, assuming that he is convicted of the charges
against him. Petitioner has provided no argument or legal
support for his final assertion that he is being harmed by “a
continuing violation of his right not to be tried at all by
military commission” and so the Court will disregard it. See
Local Civil Rule 7(a).
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Neither do the balance of the equities and the public
interest strongly favor issuing an injunction. The government
and the public have a strong interest in bringing Petitioner to
trial in as timely a manner as possible. Petitioner’s trial date
has been set and pretrial proceedings are being scheduled in
advance of that date. Petitioner may be correct that the time
necessary to conduct a medical competency hearing would not
cause a lengthy delay, but that consideration does not tip the
balance in his favor. Petitioner has been accommodated in a
number of ways by the military judge including, but not limited
to, the building of the jumbo cell, the provision of specialized
equipment, and acceding to Petitioner’s preferred schedule of
holding sessions in the morning rather than in the afternoon on
consecutive days. The Court agrees with Petitioner that the
public has an interest in ensuring verdicts are against
competent persons, but again, any issue of his medical
competency would be addressable on appeal.
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III. Conclusion
For the reasons set forth above, the Court HOLDS IN
ABEYANCE Petitioner’s motion to lift stay and DENIES
Petitioner’s motion for preliminary injunction. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed:
Emmet G. Sullivan
United States District Judge
September 26, 2019
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