Some argue that Mohammed should be tried in a military tribunal as an unprivileged enemy belligerent. Only 29 percent of voters agree with the President’s decision to not hold the trial in a military tribunal and only 30 percent think suspected terrorists should have access to US courts, according to Rasmussen Reports. However, military tribunals can only be used when there has been a formal declaration of war. At the moment, there is no precise definition of a formal declaration of war. The last time a piece of US legislation was passed with the phrase “declaration of war” in the title was in 1942 against Romania.
The President has not been allowed to formally declare war since the passage of the War Powers Resolution of 1973. This resolution gave Congress exclusive power to formally declare war. The President is also required to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.
However, the constitutionality of the War Powers Resolution has been questioned. Every President since its passage has treated the act as possibly unconstitutional. The reports to Congress, which the Resolution requires of the President, have been drafted to state that they are “consistent with” the War Powers Resolution and not “pursuant to” the Resolution, implying the Presidential position that the Resolution is unconstitutional.The Obama Administration, at first, seemed to be in alignment with the War Powers Resolution in regards to Guantanamo. President Obama had immediately halted the military tribunals in Guantanamo when he was elected, pursuant to a Supreme Court decision. However, he has then resumed the Guantanamo military tribunals with a new experimental legal system, which is a hybrid of civilian and military courts. President Bush had previously argued that the military tribunals in Guantanamo Bay were authorized by a congressional joint resolution, which served as a formal declaration of war. The Supreme Court rejected this assertion, ruling that only with the consent of Congress can the President use military tribunals. It also stated that the detention camps in Guantanamo is in violation of the Geneva Conventions. Obama, then, with the passage of the National Defense Authorization Act for Fiscal Year 2010, defied the Supreme Court's interpretation of the War Powers Resolution and granted the President the right to try the detainees in military tribunals.
This implies that Obama is resuming military tribunals in Guantanamo despite the Supreme Court's ruling that Guantanamo violates the Geneva Conventions. Despite public opinion, there does not seem to be any legal way the President could try Mohammed or any of the other terrorist suspects in military tribunal courts. The debate about whether or not Mohammed should be tried in a military tribunal is irrelevant, because the rule of international law has already been abandoned.