Sudha Setty


President Obama has made clear that the United States must grapple with questions of how to detain and try potentially dangerous terrorism suspects in a manner that maximizes national security while adhering to the rule of law. Yet the United States faces a serious quandary in terms of how to prosecute suspects who have been detained at Guantanamo Bay, Cuba, that puts at risk the reputation of the United States justice system and its adherence to rule of law. The question of what trial system to use for suspected terrorists requires an historical interrogation of how and to what effect the United States has used specialized courts for wartime trials previously and whether Article III courts or the military justice system could have handled such trials. Further, the government’s choice to use a specialized court system must be understood within the context of deciding whether certain groups of people are deemed more suitable than others to be tried in a specialized court. In recent years, the United States has been willing to consider and possibly adopt counterterrorism tactics—including the use of specialized courts for terrorism trials—from other countries when those tactics are perceived to be successful. This engagement in comparative national security policy analysis can be fruitful only if paired with consideration of the short- and long-term efficacy of those policy choices in context, which is what this Article seeks to address.

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