Commissioned by FOG.
Source: US Presidential Document, Federal Register Vol. 66 no on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.
- A project by Zak Kyes & Markus Miessen
[Federal Register Volume 66, Number 222 (Friday, November 16, 2001)]
From the Federal Register Online via
the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-28904]
Military Order of November 13, 2001--Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism
Federal Register / Vol. 66, No. 222 / Friday, November 16, 2001 /
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
(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
(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
(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
(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
(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
(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
(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
(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;
(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
(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;
(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
(b) With respect to any individual subject to this
(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
(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.
THE WHITE HOUSE,
November 13, 2001.
[FR Doc. 01-28904
Filed 11-15-01; 8:56 am]
Billing code 3195-01-P