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:
10 USC 821: Art. 21. Jurisdiction of courts-martial not exclusive: The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
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.