A complex of canvas Quonset huts arrayed like dominoes has risen on an abandoned airfield here, where just a year ago the Pentagon envisioned a $125-million permanent judicial center in which terrorism suspects would be brought to trial.
The battlefield-style Expeditionary Legal Complex, which can be quickly dismantled once the war-crimes tribunals of the Guantanamo detainees are over, reflects the shrinking mission of the controversial procedures created by the Military Commissions Act of 2006. Authorities plan to prosecute only a few dozen of the approximately 330 men detained here, and the first trial is scheduled to begin next month.
Proponents of the expeditionary approach to the tribunals insist the $12-million canvas complex will be just as secure and functional as the costlier one others envisioned.
“It will have everything required to conduct multiple, simultaneous, highly classified commission hearings,” said Rear Adm. Mark H. Buzby, commander of the Joint Task Force in charge of incarcerating and interrogating terrorism suspects. His staff is also overseeing construction of the complex that will provide work space and accommodation for as many as 500 lawyers, courtroom personnel and journalists during the trials.
“The only difference is that it’s going to be like camping out. It’ll be a little rough,” Buzby said.
As a taxpayer, Buzby said he thought it made little sense to spend more than $100 million on a legal complex likely to be in use only a year or two. In addition, challenges to the tribunal process are still pending in U.S. federal court.
“After the commissions are over you’re not going to have a need for a large legal edifice here. We can just pack it all up,” Buzby said of the nearly 100 tents erected on the weed-choked runway. The sole permanent structure will house a top-security courtroom.
After a four-month delay because of a jurisdictional issue, the first trial before a military commission is set for Nov. 8, when Canadian Omar Khadr faces murder and conspiracy charges in the base’s existing facility. But prosecution of 14 “high-value” prisoners, including suspected 9/11 mastermind Khalid Sheikh Mohammed, must wait for the April 1 opening of the expeditionary complex.
The existing makeshift courtroom in the disused air strip’s 1940s-era control tower cannot be made secure enough for the top-secret materials and maximum-security detention needed while prosecuting the reputed Al Qaeda kingpins, said Sgt. 1st Class Domini McDonald, the senior paralegal and construction liaison in Guantanamo for the Defense Department’s Office of Military Commissions.
The expeditionary approach to trying terrorism suspects has created a rift between those organizing and administering the trials and those responsible for detaining the men.
Asked whether detainees like Mohammed, known in security parlance as KSM, were likely to face trial soon or remain under prolonged interrogation, Buzby said that the 14 men brought in from secret CIA sites a year ago had already been mined for their intelligence value and that he expected war-crimes indictments “in the not-too-distant future.”
Buzby said interrogation of the high-value 14 had been “fairly fruitful,” and he intimated sympathy with a view that it’s high time to start the trials.
But some commissions officials grumble about crude conditions that will confront attorneys and court personnel expected to live and work in tents for the duration of the trials that could run weeks or even months.
“These guys are going to be in trials for 10, 11, 12 hours a day, and they won’t have the relaxation they need sleeping on a cot,” said McDonald, noting that showers and toilets are in separate tents. “I’m a taxpayer, but I personally think we should have gone with the other idea.”
The $125-million complex the Pentagon tried to slip into a supplemental spending bill in December would have provided three courtrooms, an office building and enough hotel rooms, restaurants and parking for as many as 800 people.
Pentagon officials are also working to clear remaining legal and procedural impediments before the trials can resume.
War-crimes charges filed against Khadr and Salim Ahmed Hamdan, a Yemeni driver and bodyguard for Osama bin Laden, were thrown out during a June arraignment. The commissions judges in both cases ruled that the Guantanamo tribunal has jurisdiction only over defendants determined to have been “unlawful enemy combatants” -- a designation left out of all Guantanamo prisoners’ initial screenings by Combatant Status Review Tribunals.
Under the Geneva Convention, some combatants captured fighting for their country or defending themselves against foreign attack can be considered lawful enemy combatants beyond a war-crimes tribunal’s jurisdiction. The number of Afghans captured during the 2001 U.S. invasion and held at Guantanamo was well above 100 until a recent spate of repatriations dropped the number to about 50.
The Pentagon office that branded prisoners “enemy combatants” during status reviews in 2004 and 2005 is reviewing detainee case files for evidence addressing the lawful-versus-unlawful question that might have been overlooked or disregarded during the hearings, said Navy Capt. Theodore Fessel Jr., who heads the Office for the Administrative Review of the Detention of Enemy Combatants at Guantanamo.
“With all the outside eyes looking in at the process, it’s forcing us to say, ‘OK, did we take everything into consideration when we did the Combatant Status Review Tribunals?’ ” Fessel said. “There’s an appetite among the people who are my bosses to go back and see if there is new evidence and if new Combatant Status Review Tribunals are warranted.”
No instructions from Washington have yet been received to redo the status reviews or to make fresh determinations in light of the dismissal of charges against Khadr and Hamdan, he said. “But we do know, because we don’t live under a rock here, that there is a desire to do this,” Fessel said.
His office also conducts annual reviews of the need to detain each prisoner. The review panels have recommended further imprisonment in 78% of the cases examined so far this year.
A civilian attorney representing two Guantanamo prisoners in habeas corpus challenges in U.S. federal courts said that his clients were again recommended for continued detention recently but that the information backing that decision had been altered from previous years. Their case files were changed to claim they were supporting Al Qaeda instead of assisting the Taliban, as originally alleged.
“They’re trying to pump up the terrorism connection,” said the attorney, who spoke on condition of anonymity because the notes from his meeting with the Middle Eastern clients had not yet been approved by security censors. Failure to comply with Joint Task Force rules governing habeas visits can lead to an attorney being denied permission to return to the U.S. military base for future consultations.