This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments since President Barack Obama took office.
The second section addresses the location of Mohammad’s trial. This section begins by discussing Attorney General Eric Holder’s announcement on November 13, 2009 to move the trial of Mohammad to the United States District Court of the Southern District of New York. This section addresses public opposition to the decision and concludes with a discussion of Holder’s January 30, 2010 decision to reconsider the location of the trial.
Because the Obama Administration has yet to decide which venue to pursue, the third section considers the strengths and weakness of both options. In addition to the civilian or military trials, this section explores a third “hybrid” option: a national security court with jurisdiction over international terrorism issues.