ACLU Letter to the Senate Strongly Urging Senators to Block the Construction of a Courthouse on Guantanamo Bay

Document Date: December 5, 2006

RE: Pass Immediate Legislation to Stop a $125 Million Courthouse Boondoggle at Guantanamo–That Could Be Awarded to Halliburton

Dear Senator:

The American Civil Liberties Union strongly urges you to pass immediate legislation to block the federal government from awarding a contract worth up to $125 million for the construction of a new courthouse at Guantanamo Bay. The Defense Department is claiming that it has special emergency powers to bypass Congress in building the new courthouse. Congress never authorized or appropriated funds for this project. Immediate action is needed because the December 20 is the due date for all bids, with an “assumed contract award date of 8 January 2007.” A Halliburton subsidiary had the most attendees at a pre-proposal conference held this afternoon.

Particularly when federal courts are already hearing challenges to the constitutionality and legality of the Military Commissions Act procedures affecting detainees, Congress–and not the Defense Department on its own–should make decisions on whether, when, and how to build a new courthouse. There already is a courtroom at Guantanamo Bay, as well as literally hundreds of federal courtrooms across the United States.

In a “pre-solicitation notice” posted on November 20, 2006, the Naval Facilities Engineering Command announced that contractors had thirty days to submit bids for the construction of a “Legal Compound,” with “the estimated cost range between $75,000,000 and $125,000,000.” The construction would include two new courtrooms, a dining facility for 800 people, and a “transportation facility” for up to 100 government vehicles to drive on the small island base. The notice is available at: https://www.esol.navfac.navy.mil/eSolPub/AdvertisedSolicitations.cfm?Sort=SOL_NUM . It states that all proposals are due by December 20, 2006, and that “the Government may award the contract without conducting discussions,” and that “the work must be completed by July 2007.”

The Miami Herald reported yesterday that Deputy Defense Secretary Gordon England wrote to several members of Congress to state that the Defense Department authorized the fast-track construction of the proposed new courthouse without any act of Congress. Defense Department spokesman Bryan Whitman told the Miami Herald that the government would fund the $125 million project by “offsets [that] have been identified.” However, in his letter to Congress, England states that the government will later return to Congress to seek funds to pay for the programs that the Department will cut in order to pay for the unauthorized construction.

A Halliburton Co. subsidiary, KBR Inc., is the contractor that most recently constructed a facility at Guantanamo Bay. A June 18, 2005 Houston Chronicle article reported that the Naval Facilities Engineering Command–the same agency that will award the contract for the construction of the new courthouse–awarded a $30 million contract to build a facility to house 220 detainees. This same Halliburton subsidiary agreed last week to pay $8 million to the government to settle an overcharging claim by the Army for an unrelated construction project.

In a pre-proposal conference for contractors held by the Defense Department this afternoon, only eight contractors attended, with Halliburton subsidiary KBR having the most representatives in the room–four Halliburton personnel were in the conference.

There is no need for an elaborate, permanent courthouse complex at Guantanamo Bay (there already is a working courtroom at Guantanamo Bay). Even President Bush has expressed his interest in substantially reducing the number of detainees at Guantanamo Bay and eventually closing it. In fact, Defense Department officials concede that no more than a few dozen detainees will be charged and tried there.

Moreover, the Military Commissions Act, which establishes the commissions before which people would be tried at Guantanamo Bay, is a shaky foundation on which to build a permanent courthouse complex at such huge taxpayer expense. At least one section of the Military Commissions Act is already being reviewed by the federal courts, and eventual challenges to other provisions may invalidate other sections of the Military Commissions Act.

Federal courts are already reviewing the constitutionality and legality of a section of the Military Commissions Act that strips any alien deemed an “enemy combatant” of the right to have a court determine whether the government is holding the person lawfully. The Great Writ of habeas corpus is the basis of our nation’s limits on arbitrary executive power over any person. By stripping habeas protections, the Military Commissions Act abandoned the most important check of last resort on executive power.

Whenever military commission trials actually begin, the courts will likely reverse convictions or invalidate the trial procedures. The trial procedures are vulnerable because of such provisions as a section in the Military Commissions Act which authorizes convictions based on evidence obtained in violation of the Senate-ratified Convention Against Torture and other federal laws barring abuse of detainees. The statute allows the use of evidence obtained in violation of the provisions of the McCain anti-torture amendment, so long as the evidence was obtained prior to its enactment last December. It is extraordinarily unlikely that federal courts will uphold a statute permitting a person to be convicted based on evidence that was literally beaten out of a witness.

The ACLU strongly urges you to pass immediate legislation to stop the awarding of up to $125 million for an unauthorized courthouse.


Caroline Fredrickson

Christopher E. Anders
Legislative Counsel

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