Although the Pentagon estimates that no more than 80 of the 400 or so terrorism detainees here will ever be tried, it is moving forward with plans for a $125-million legal complex.
Air Force Col. Morris Davis, chief prosecutor of the suspected Al Qaeda and Taliban supporters, says he expects to file charges against 10 to 20 prisoners soon after new trial rules are presented to Defense Secretary Robert M. Gates next month.
The Supreme Court in June found the Bush administration's military tribunal system unconstitutional, and Congress passed the Military Commission Act in September to replace it. But less than 20% of the prisoners held here are expected to face charges under the new commissions. "At the end of the day, I think the total will be about 75, give or take a few," Davis says.
Much of the legal work is done in Washington or in other U.S.-based offices of the military's judicial network -- not at Guantanamo Bay.
Still, Davis says, there is just one courtroom here, in a converted air terminal that also houses legal staff and a high-security lockup. The new compound would have three courtrooms, restaurants, parking and accommodations for at least 800 people.
"It's going to take longer to do these trials one at a time in one courtroom," Davis said. A more rigorous pace could be undertaken if the complex is ready by July, as the Pentagon envisions.
Cully Stimson, deputy assistant secretary of Defense for detainee affairs, insists the legal facility is vital to bringing terrorism suspects to justice. Even with back-to-back trials, he said, it would take over a decade to prosecute an expected 60 to 80 detainees using one courtroom.
"We're fiscal conservatives by definition. We're not building the Taj Mahal here, Stimson said.
Doubts about the future of Guantanamo and the logic of investing in an operation many U.S. allies want to see shut down may doom the building project.
Calling the complex "a massive boondoggle," the American Civil Liberties Union has urged the incoming Democratic-controlled Congress to deny funding.
"No one thinks more than a few dozen detainees will ever be tried there," said Chris Anders, the ACLU legislative counsel. "I just don't see the next Congress authorizing any significant construction for additional courtrooms."
There is nothing in either the Military Commissions Act or in the rules governing courts-martial that requires war-crimes trials to be conducted in a courtroom -- or even at this remote naval base, Anders said.
The Pentagon earlier this month backed down from a plan to fast-track the legal compound without approval from Congress; it is expected to be part of a supplemental funding request in February or March.
"We want these procedures to be full and fair, and do not want the lack of facilities to be a reason to delay the process," Pentagon spokesman Navy Cmdr. Jeffrey D. Gordon said.
Davis says he expects to have cases ready to try by March. But Navy Cmdr. Pat McCarthy, the staff judge advocate, said no one is certain how long the rule-writing and legal challenges to the Military Commissions Act could take.
The dispute over whether and how much to invest in facilities for holding and trying terrorism suspects has been fueled by demands from European allies and human-rights activists for release or trial of the men here -- most of whom will mark five years in detention in 2007.
"I think it is excessive," University of Richmond law professor Carl Tobias said of the legal-complex proposal. "They only scheduled 10 [trials] to date and with so much legal uncertainty, I think this is going to get a thorough review" by a skeptical Congress.
Joshua Colangelo-Bryan, a lawyer for a Bahraini prisoner being held without charges, said the Pentagon "will be lucky if they can even bring cases against the 10" charged earlier due to lack of evidence, lost contact with witnesses and shifting definitions of what amounts to terrorism.
Among those now at Guantanamo are 14 prisoners deemed by the U.S. government to be "high-value" detainees who were transferred from secret CIA prisons -- including alleged Sept. 11 mastermind Khalid Shaikh Mohammed.
At least 100 others at the facility have been cleared by annual Administrative Review Board hearings that deemed them to be negligible threats to U.S. or allied security.
And the governments of Saudi Arabia, Afghanistan and Yemen remain in negotiations with the State Department for transfer of their citizens.
Guantanamo jailers expect the prison population to drop to 200 and stay there, even if the rest of the inmates are never tried. Rear Adm. Harry B. Harris Jr., commander of operations here, said the number should be closer to 300 because "they are all dangerous men."
About 160 of the detainees have just been moved into concrete cells with steel doors at a new $38-million maximum-security prison, Camp 6. Another 90-plus are confined in a similarly restrictive facility, Camp 5, which was completed two years ago.
The new construction -- Camp 6 has a medical clinic and two meeting rooms for legal visits -- and existing cells were modified "to improve quality of life for both detainees and the guard force," said Cmdr. Robert Durand, spokesman for the Joint Task Force operating the prisons.