MILITARY ORDER DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM



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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 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 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.