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Presidential Order on Use of
Military Tribunals to Try Terrorists
November 16, 2001
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[Federal Register: November 16, 2001 (Volume 66, Number 222)]
[Presidential Documents]
[Page 57831-57836]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16no01-100]
[[Page 57831]]
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Part IV
The President
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Military Order of November 13, 2001--Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 57833]]
Military Order of November 13, 2001
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
[[Page 57834]]
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 therefore, 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--
[[Page 57835]]
(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
[[Page 57836]]
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.
(Presidential Sig.)B
THE WHITE HOUSE,
November 13, 2001.
[FR Doc. 01-28904
Filed 11-15-01; 8:56 am]
Billing code 3195-01-P
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