The district court found that adjudicating Al-Nashiri's habeas petition would unduly interfere with the proceedings of the military commission and accordingly granted the government's motion to hold the case in abeyance pending the resolution of his military-commission trial and any subsequent appeals.

In an alternative ruling on Al-Nashiri's motion for a preliminary injunction, the district court did state that Al-Nashiri failed to show the sort of irreparable injury necessary to obtain injunctive relief.

The US military did not recognize the existence of an armed conflict when the USS Cole was bombed (the author commanded a Navy frigate at the time), and the US response relied solely on peacetime measures and criminal law processes

Chief Judge Richard W. Roberts denied the injunction and declined to exercise equitable jurisdiction over the habeas petition during the pendency of the military commission trial

—four other district courts have relied upon Councilman to decline to entertain pre-trial challenges to the commissions Congress created in response to Hamdan under the Military Commissions Act of 2006 (MCA

Just to take one example, the Al-Nashiri litigation raises fundamental questions about the temporal jurisdiction of the military commissions (and whether they can try pre-9/11 offenses) and the constitutional composition of the intermediate Court of Military Commission Review (and whether military judges serving on it are “principal officers” for purposes of the …

—court refused to label this delay excessive because of Al-Nashiri's failure to contest the postponement of his trial.

[BOOK] Law's trials: The performance of legal institutions in the US'War on Terror'