THERE IS ONLY one big problem with the order the Pentagon issued this week establishing military tribunals to hear challenges to its detentions at Guantanamo Bay, Cuba: It comes 21/2 years too late. If the military had taken this step when it established the prison camp, much of the controversy over its handling of detainees there would never have materialized. International law, after all, doesn't demand much. It doesn't forbid the administration from holding al Qaeda and Taliban captives as unlawful combatants or interrogating them for intelligence. It doesn't give the detainees a right to counsel or a right to a full-fledged criminal trial. But it does require that before denying a detainee the protections due a prisoner of war, authorities must hold a hearing before a "competent tribunal." Instead of granting this as a matter of course, the administration flamboyantly refused until the Supreme Court forced its hand last week. By doing so, it brought international opprobrium on the United States. It generated domestic skepticism of its commitment to the rule of law in fighting terrorism. And, ironically, it pushed the high court into a potentially dangerous assertion of jurisdiction over foreign detainees -- an assertion that weakens the executive authority the administration had been seeking to bolster.
As the order issued by Deputy Defense Secretary Paul D. Wolfowitz makes clear, the heavy price the administration paid to delay compliance with the Geneva Conventions was gratuitous. While the tribunals will afford a measure of independent oversight and should largely bring Guantanamo into compliance with U.S. treaty obligations, they will hardly hamper the prison's functioning. The tribunals will operate with a presumption in favor of the government's evidence. Inmates will have a "representative" but not a lawyer. Restrictive rules of evidence will not apply. In most cases, the hearings may validate the detention decisions made more than two years ago.
The tribunals may go a long way toward solving Guantanamo's legal problems. Unfortunately, they probably cannot retroactively give the detentions the legitimacy they would have had if the hearings had been convened willingly and speedily. The damage, in many ways, cannot be undone. President Bush sent a message to the world that he cared little for international norms, and the world heard the message loud and clear.
In addition, the Supreme Court's ruling means that the government has a new burden -- one the Pentagon's order recognizes but does not adequately address. Because the federal courts now have jurisdiction to hear challenges to detention, the order provides that all detainees "shall be notified of the opportunity . . . to seek a writ of habeas corpus in the courts of the United States." But the document does not say how detainees are supposed to take advantage of that opportunity. They are being held incommunicado, after all. Most have no lawyers. Probably few even know what a writ of habeas corpus is. So unless the Pentagon does more than inform detainees of their right to petition the courts, the jurisdiction the court has asserted will be meaningless. Having blundered its way into federal court oversight of detentions at the camp, the government will now have to figure out how to meaningfully facilitate judicial review.