[Weekly Compilation of Presidential Documents Volume 37, Number 46 (Monday, November 19, 2001)]
[Pages 1665-1668]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Military Order--Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism
November 13, 2001
By the authority vested in me as President and as Commander in Chief
of the Armed Forces of the United States by the Constitution and the
laws of the United States of America, including the Authorization for
Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat.
224) and sections 821 and 836 of title 10, United States Code, it is
hereby ordered as follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have
carried out attacks on United States diplomatic and military personnel
and facilities abroad and on citizens and property within the United
States on a scale that has created a state of armed conflict that
requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism,
including the terrorist attacks on September 11, 2001, on the
headquarters of the United States Department of Defense in the national
capital region, on the World Trade Center in New York, and on civilian
aircraft such as in Pennsylvania, I proclaimed a national emergency on
September 14, 2001 (Proc. 7463, Declaration of National Emergency by
Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in
international terrorism possess
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both the capability and the intention to undertake further terrorist
attacks against the United States that, if not detected and prevented,
will cause mass deaths, mass injuries, and massive destruction of
property, and may place at risk the continuity of the operations of the
United States Government.
(d) The ability of the United States to protect the United States
and its citizens, and to help its allies and other cooperating nations
protect their nations and their citizens, from such further terrorist
attacks depends in significant part upon using the United States Armed
Forces to identify terrorists and those who support them, to disrupt
their activities, and to eliminate their ability to conduct or support
such attacks.
(e) To protect the United States and its citizens, and for the
effective conduct of military operations and prevention of terrorist
attacks, it is necessary for individuals subject to this order pursuant
to section 2 hereof to be detained, and, when tried, to be tried for
violations of the laws of war and other applicable laws by military
tribunals.
(f) Given the danger to the safety of the United States and the
nature of international terrorism, and to the extent provided by and
under this order, I find consistent with section 836 of title 10, United
States Code, that it is not practicable to apply in military commissions
under this order the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the United States
district courts.
(g) Having fully considered the magnitude of the potential deaths,
injuries, and property destruction that would result from potential acts
of terrorism against the United States, and the probability that such
acts will occur, I have determined that an extraordinary emergency
exists for national defense purposes, that this emergency constitutes an
urgent and compelling government interest, and that issuance of this
order is necessary to meet the emergency.
Sec. 2. Definition and Policy.
(a) The term ``individual subject to this order'' shall mean any
individual who is not a United States citizen with respect to whom I
determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant
times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation
therefor, that have caused, threaten to cause, or have as
their aim to cause, injury to or adverse effects on the
United States, its citizens, national security, foreign
policy, or economy; or
(iii) has knowingly harbored one or more individuals described in
subparagraphs (i) or (ii) of subsection 2(a)(1) of this
order; and
(2) it is in the interest of the United States that such individual
be subject to this order.
(b) It is the policy of the United States that the Secretary of
Defense shall take all necessary measures to ensure that any individual
subject to this order is detained in accordance with section 3, and, if
the individual is to be tried, that such individual is tried only in
accordance with section 4.
(c) It is further the policy of the United States that any
individual subject to this order who is not already under the control of
the Secretary of Defense but who is under the control of any other
officer or agent of the United States or any State shall, upon delivery
of a copy of such written determination to such officer or agent,
forthwith be placed under the control of the Secretary of Defense.
Sec. 3. Detention Authority of the Secretary of Defense. Any
individual subject to this order shall be--
(a) detained at an appropriate location designated by the Secretary
of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race,
color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and
medical treatment;
(d) allowed the free exercise of religion consistent with the
requirements of such detention; and
(e) detained in accordance with such other conditions as the
Secretary of Defense may prescribe.
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Sec. 4. Authority of the Secretary of Defense Regarding Trials of
Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried
by military commission for any and all offenses triable by military
commission that such individual is alleged to have committed, and may be
punished in accordance with the penalties provided under applicable law,
including life imprisonment or death.
(b) As a military function and in light of the findings in section
1, including subsection (f) thereof, the Secretary of Defense shall
issue such orders and regulations, including orders for the appointment
of one or more military commissions, as may be necessary to carry out
subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this
section shall include, but not be limited to, rules for the conduct of
the proceedings of military commissions, including pretrial, trial, and
post-trial procedures, modes of proof, issuance of process, and
qualifications of attorneys, which shall at a minimum provide for--
(1) military commissions to sit at any time and any place,
consistent with such guidance regarding time and place as the
Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as
the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the
presiding officer of the military commission (or instead, if any
other member of the commission so requests at the time the
presiding officer renders that opinion, the opinion of the
commission rendered at that time by a majority of the commission),
have probative value to a reasonable person;
(4) in a manner consistent with the protection of information
classified or classifiable under Executive Order 12958 of April
17, 1995, as amended, or any successor Executive Order, protected
by statute or rule from unauthorized disclosure, or otherwise
protected by law, (A) the handling of, admission into evidence of,
and access to materials and information, and (B) the conduct,
closure of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated
by the Secretary of Defense and conduct of the defense by
attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present;
(7) sentencing only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present; and
(8) submission of the record of the trial, including any conviction
or sentence, for review and final decision by me or by the
Secretary of Defense if so designated by me for that purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of
Defense.
Departments, agencies, entities, and officers of the United States
shall, to the maximum extent permitted by law, provide to the Secretary
of Defense such assistance as he may request to implement this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section
1, the Secretary of Defense shall issue such orders and regulations as
may be necessary to carry out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or
duties, and may exercise any of the powers provided to him under this
order (other than under section 4(c)(8) hereof) in accordance with
section 113(d) of title 10, United States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to--
(1) authorize the disclosure of state secrets to any person not
otherwise authorized to have access to them;
(2) limit the authority of the President as Commander in Chief of
the Armed Forces or the power of the President to grant reprieves
and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any
military commander, or any other officer or agent of the United
States or of any State to
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detain or try any person who is not an individual subject to this
order.
(b) With respect to any individual subject to this order--
(1) military tribunals shall have exclusive jurisdiction with
respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or
maintain any proceeding, directly or indirectly, or to have any
such remedy or proceeding sought on the individual's behalf, in
(i) any court of the United States, or any State thereof, (ii) any
court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right,
benefit, or privilege, substantive or procedural, enforceable at law or
equity by any party, against the United States, its departments,
agencies, or other entities, its officers or employees, or any other
person.
(d) For purposes of this order, the term ``State'' includes any
State, district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at
any time hereafter, to transfer to a governmental authority control of
any individual subject to this order. Nothing in this order shall be
construed to limit the authority of any such governmental authority to
prosecute any individual for whom control is transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
George W. Bush
The White House,
November 13, 2001.
[Filed with the Office of the Federal Register, 8:56 a.m., November 15,
2001]
Note: This military order was published in the Federal Register on
November 16.