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 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.