IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1635

Memorandum in opposition to re (1530 in 1:08-mc-00442-TFH, 160 in 1:05-cv-02385-RMU) MOTION to Dismiss The Habeas Petition of Mohammed Jawad or, Alternatively, to Hold it in Abeyance Pending Completion of Military Commission Proceedings filed by SAKI BACHA. (Attachments: # 1 Declaration of David J.R. Frakt)(Shamsi, Hina)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ IN RE: GUANTÁNAMO BAY DETAINEE LITIGATION ________________________________________________ AL HALMANDY, et al., Petitioners, v. BARACK H. OBAMA, et al., Respondents. ________________________________________________ DECLARATION OF DAVID J. R. FRAKT I, David J. R. Frakt, hereby declare and state as follows: 1. I am a U.S. Air Force Reserve Judge Advocate. In April 2008, I was voluntarily No. 05-cv-2385 (RMU) Misc. No. 08-442 (TFH)

recalled to active duty from my civilian position as Associate Professor of Law and Director of the Criminal Law Practice Center at Western State University College of Law in Fullerton, California, to serve as a defense counsel with the Office of Military Commissions, Office of the Chief Defense Counsel, located at Franklin Court Building, Suite 2000D, 1099 14th St. NW, Washington, D.C. 20005. I was detailed by the Chief Defense Counsel as lead defense counsel for Mohammed Jawad on April 29, 2008 in the military commission case against him and have served in that role since. I was admitted pro hac vice to this Court by Minute Order dated January 4, 2009 in the above-captioned matter, in which I am co-counsel for petitioner Mohammed Jawad (a/k/a Saki Bacha).

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2.

Pursuant to discovery requests that I presented to the military prosecutors

assigned to the military commission case against Mr. Jawad, the government provided the defense with approximately 9,000 pages of documents in discovery. These prosecutors have repeatedly represented to me and to the military judge, both orally and in written filings with the commission, that the government has met all its discovery obligations in the case and that counsel do not believe there are any more records that the government is required to produce before the case goes to trial. 3. On behalf of Mr. Jawad, I opposed the government's motion for a stay of the

Court of Military Commission Review's ("CMCR") decision on the government's appeal of a ruling granting a suppression motion in Mr. Jawad's military commission. In my response to the government's motion, I argued that there was no legal authority to "halt" a properly filed interlocutory appeal that had already been fully briefed and argued, that the proper procedure for the government to forestall further proceedings would be for the government to withdraw the charges against Mr. Jawad, and that further delay in Mr. Jawad's case would not be in the interests of justice. I attached to my response the government's motion to dismiss or hold Mr. Jawad's habeas petition in abeyance filed before this Court, to show the CMCR that the government was trying to cut off all possible avenues for Mr. Jawad to challenge his detention. 4. Attached hereto as Exhibit A is a true and correct copy of two pages from the

Military Commission Transcript of Pre-Trial Proceedings in United States v. Jawad, dated June 19, 2008. The first page of Exhibit A is the first page of the Transcript and sets forth the date of the proceeding. The second page contains the decision by the military judge dismissing the second of two charges the prosecution brought against Mr. Jawad, pursuant to a motion I filed, referred to as motion D-006.

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5.

Attached hereto as Exhibit B is a true and correct copy of the Memorandum from

Secretary of Defense Robert Gates to the Convening Authority for Military Commissions and the Chief Prosecutor, Office of Military Commissions, dated January 20, 2009. 6. Attached hereto as Exhibit C is a true and correct copy of the U.S. Court of

Military Commission Review's Order Granting Appellant's Request for Delay, dated February 4, 2009. 7. Attached hereto as Exhibit D is a true and correct copy of an email exchange

between my co-counsel, Hina Shamsi, and counsel for Respondents, Kristina Wolfe, dated February 9 and 10, 2009. 8. Attached hereto as Exhibit E is a true and correct copy of the Declaration of Dr.

Katherine Porterfield, a psychologist appointed by the military commission as an exper