FC: Text of Bush's order creating military tribunals for civilians

Declan McCullagh declan at well.com
Wed Nov 14 20:44:49 PST 2001


Many folks wrote to me pointing out that President Bush's order was
online this morning, probably by the time I sent my note to
Politech. It also appeared in today's New York Times. Mea culpa. I
wrote my note last night, but did not doublecheck before sending it
out this morning and heading off to the Cato Institute conference for
the day.

I haven't has as much time to look at this as I'd like, but the order
says military tribunals will hear cases dealing with only an accused
terrorist "who is not a United States citizen."

Jason Zengerle has a perhaps-prescient article giving arguments
for a military tribunal here:
http://www.thenewrepublic.com/111901/zengerle111901.html

Previous Politech message:
http://www.politechbot.com/p-02794.html

-Declan

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http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html

                                                     For Immediate Release
                                             Office of the Press Secretary
                                                         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.

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    (OVER)

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    (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;

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    (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

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    (OVER)

    4

    (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.

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    (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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