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THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release November 13, 2001
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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