But in the final chapter McCarthy outlines his conclusions about why the struggle of the United States against jihadists should not be addressed through the courts or the American justice system, but rather through our intelligence community and our military. Here's an excerpt:
The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights. Not so in the realm of national security. There, government confronts a host of sovereign states and sub-national entities (particularly international terrorist organizations) claiming the right to use force. The executive is not enforcing American law against a suspected criminal but exercising national defense powers to protect our country against external threats. ...The galvanizing concern in the national security realm is to defeat the enemy, and, as Bill Barr puts, "preserve the very foundation of all our civil liberties." The line drawn here is that government cannot be permitted to fail.
The folly of the criminal justice approach to terrorism is highlighted by McCarthy when he points out that in the eight years between the '93 bombing of the World Trade Center towers and their final destruction in 2001 there were less than ten major terrorism prosecutions, and these at a truly staggering cost that continues to this day since several of these cases, all these years later, are still in appellate or habeas-corpus litigation.
He also affirms that the legal approach actually increases the threat of terrorism because of the information that can (and has been) conveyed to foreign terrorist masters through the discovery process of a trial.
An additional detriment is that it corrodes our own system of justice. Since Islamic terrorist are not motivated in the same way as "criminals", and since the danger to the greater society is just as real as if the terrorist were being confronted in a military way:
the legally required showing of probable cause for a search warrant is apt to be loosely constructed when agents, prosecutors, and judges know denial of the warrant may mean a massive bombing plot is allowed to proceed. ...Civilian justice is a zero-sum arrangement. Principles and precedents we create in terrorism cases generally get applied across the board. Worse still, this state of affairs incongruously redounds to the benefit of the terrorist. Initially, this is because his central aim is to undermine our system, so in a very concrete way he succeeds whenever justice is diminished. Later, as government countermeasures come to appear more oppressive, it is because civil society comes increasingly to blame the government rather than the terrorists. In fact, the terrorists--the lightening rod for all of this--come perversely to be portrayed, and to some extent perceived, as symbols of embattled liberal principles, the very one it is their Utopian mission to eradicate. The ill-informed and sometimes malignant campaigns against the Patriot Act and the National Security Agency's terrorist surveillance program are examples of this phenomenon.
In sum, trials in the criminal justice system don't work for terrorism. They work for terrorists.