[Weekly Compilation of Presidential Documents]
From the 2001 Presidential Documents Online via GPO Access [frwais.access.gpo.gov]
[DOCID:pd19no01_txt-36]                         

[Page 1665-1668]
 
Monday, November 19, 2001
 
Volume 37--Number 46
Pages 1631-1685
 
Week Ending Friday, November 16, 2001
 
Military Order--Detention, Treatment, and Trial of Certain 
Non-Citizens in the War Against Terrorism

November 13, 2001

    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

[[Page 1666]]

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.

[[Page 1667]]

    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

[[Page 1668]]

      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.

 [Filed with the Office of the Federal Register, 8:56 a.m., November 15, 
2001]

 Note:  This military order was published in the  Federal Register  on 
November 16.