On February 13, 2004, Secretary of Defense Donald Rumsfeld announced that each Guantanamo prisoner would eventually receive an "annual review" to assess his status. But such an informal process, essentially an extension of the military's current ad hoc, discretionary arrangement, would be insufficient. Rather, the United States should provide terror suspects with access to a new, specially constituted tribunal staffed by jurists with the expertise and security clearance to handle terrorism cases. Unlike the "terrorism court" that has been proposed by various commentators since 9/11, this tribunal would not judge the guilt or innocence of those brought before it. That is because, as I have argued, the concept of guilt and innocence does not properly apply to a suspected terrorist (who may have done nothing criminal, but who nonetheless can be shown to possess a generalized intent to perform acts of terror). Rather, the tribunal's sole function would be to pass judgment on a suspect's proper classification--criminal, soldier or terrorist. The proceedings would be adversarial, with a designated Judge Advocate providing zealous representation on behalf of the suspect in question.

In other words, the body would have a somewhat similar function to that of the "competent tribunal" for the determination of a prisoner's status required under Article 5 of the Third Geneva Convention. But unlike an Article 5 tribunal, it would be informed by the intent and character of the suspect, not by the rigid list of indicia stipulated by the Convention's authors half a century ago. Thus, a U.S. terrorism tribunal would be free to weigh such factors as where and how the suspect was caught, whether he has attended terrorist training camps, whether he has pledged fealty to a terrorist group and so forth.

If the tribunal were to find that the suspect is a criminal or lawful combatant soldier, then the executive branch would be obliged to treat him as such, with all the associated rights dictated by the Constitution or the various Geneva Conventions, as the case may be. But if a fair showing can be made that a man is a bona fide terror suspect--that is, one who is disposed to premeditated, politically motivated violence against noncombatant targets--the government should be given wide discretion to interrogate and detain as it sees fit.

The events of September 11, 2001, came as a great shock to the United States and the world. In its immediate aftermath, the government of the United States did the right thing by putting legal niceties to one side and pursuing the war against terrorism full-bore. But two and a half years have now elapsed since that awful event, and we have had an opportunity to see how poorly suited our legal institutions are in regard to prosecuting this new conflict. It is high time we overhaul them. The War on Terror might remain unwinable without it.