On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some respects, however, Obama has followed the example of President Bush - for example, in his resuscitation of a specialized military commission system to try some detainees in a setting apart from a federal court or a court martial proceeding. Does the resuscitation of a military commissions system restore America’s place in the world?
This Article breaks new ground by placing the issue of specialized courts for terrorism trials in a comparative context, investigating how other nations facing grave national security threats handle the challenge of maintaining due process and a fair trial when it comes to the prosecution of terrorists. Examining the use of specialized terrorism courts in the United Kingdom, Israel and India provides insight into the potential benefits and pitfalls of such courts in the United States. This Article concludes that specialized courts in other nations have provided some benefits in terms of efficiency and affording a short-term sense of security; however, they have often contravened the rule of law by failing to establish basic levels of due process and equal protection, and they are often perceived as unfair and illegitimate by those tried in them. As such, the use of specialized courts may alienate communities and contribute to heightened long-term security risks.
63 Me. L. Rev. 131 (2010)