Obama needs to recognize that establishing such courts is a recipe for both bad law and bad policy. Along with numerous compelling legal arguments, any court outside of existing civilian or military systems only serves to exaggerate the power of extremist terrorists and validate their delusions of grandeur.
Proponents of national security courts often point to the Foreign Intelligence Surveillance Court (FISC), which reviews requests for surveillance warrants against suspected foreign intelligence agents. The FISC uses judges with high‐level security clearances that, as some proponents argue, could be used as the backbone for a new court system to try the detainees. The trials would be largely closed to the public and would not use a jury.
Using closed courts to try suspected terrorists plays the propaganda game in exactly the way our enemies want, and cheapens American justice on the world stage. Terrorism and insurgency constitute violence with a message. To effectively counter terrorists, we must provide a message of our own that denies a propaganda victory to their cause. Meting sound and irreproachable justice is an important way to do that.
While American forces are constantly improving their counterterrorism and counterinsurgency methods, we remain ineffective in countering enemy propaganda in the field of “lawfare.” Lawfare is the use of international law to attack nation‐states in courts of law and public opinion. The Taliban do this every time they hide behind civilians and then denounce Coalition forces for the inevitable and regrettable casualties. Guantanamo represents a self‐inflicted lawfare wound against the United States, where the limbo between domestic criminal law and the law of war erodes at America’s values and international standing.