For Immediate Release
Office of the Press Secretary
November 13, 2001
President Issues Military Order
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
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 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 govern-ment 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.
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 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.
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