[Winona] Military Tribunals

[Duane M. Peterson]

Some of you have responded to my e-mails on the subject of the President's Executive Order establishing Military Tribunals to try non-citizens for terrorist acts or for harboring those who do.  The order sets up a Secret procedure using Secret evidence etc. I finally found the trail of evidence on what the President is relying as authority to issue such an order.   It began with the explosion of an airliner over Lockerbee, Scotland.  The then government lawyer, William Barr, had walked by a plaque that commemorated the trial of 8 German operatives who had landed in the USA during WWII, a declared war.  His idea was to establish the same type of tribunal to try the suspects of the Lockerbee event.  The idea did not catch on at that time.    The Justice Department lawyers revisited the idea after the crashing of jets into the Trade Towers in New York.  The United States, they concluded, was in a state of Armed Conflict and thus the President could exercise War Powers similar to what President Roosevelt had done during WWII.    There is no statutory power granted by congress to establish such Military Tribunals.  The War Powers Act of 1973 grants no such powers.    It is a stretch of logic to declare that the United States is in a state of Armed Conflict.  It is ridiculous to declare that an act of terrorism is an act of war.    There are International Courts to handle cases of this type.  (Note the ongoing trial of former president Milosevic by the International Court of Justice at the Hague).  It is a dangerous precedent to create this type of secret Military Tribunal by a simple Executive Order.  It borders on (but does not actually do it) the President taking unto himself the power to declare War.  This is also an extension of the non-war wars of the past, Korea and Viet Nam.  We have previously set dangerous precedents without thinking through the total consequences.  It seems to me that this is an act similar to the Tonkin Gulf Resolution, which at least was done by the Congress.   I am now satisfied that there is no statutory basis for the President's Executive Order.  The Administration takes the position that there is no need to request the power from the Congress.