FC: Text of Bush's order creating military tribunals for civilians

From: Declan McCullagh (declanat_private)
Date: Wed Nov 14 2001 - 20:44:49 PST

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    Many folks wrote to me pointing out that President Bush's order was
    online this morning, probably by the time I sent my note to
    Politech. It also appeared in today's New York Times. Mea culpa. I
    wrote my note last night, but did not doublecheck before sending it
    out this morning and heading off to the Cato Institute conference for
    the day.
    I haven't has as much time to look at this as I'd like, but the order
    says military tribunals will hear cases dealing with only an accused
    terrorist "who is not a United States citizen."
    Jason Zengerle has a perhaps-prescient article giving arguments
    for a military tribunal here:
    Previous Politech message:
                                                        For Immediate Release
                                                Office of the Press Secretary
                                                            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
       (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;
       (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
       (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
       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
       (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.
       November 13, 2001.
                                       # # #
    From: PRGormleyat_private
    Subject: Re: FC: President Bush says military tribunals will try civilian cases
    To: declanat_private
    It's simple, maybe unethical and way off the moral high ground we claim to be 
    staking out but effective and legal under the US Constitution. Make sure you 
    check for any text that says these protections apply to non-citizens.  While 
    I am unqualified to comment on the national security aspect of these issues, 
    there certainly are security issues presented by them. I quote the US 
    Constitution, 14th Amendment:
    Amendment XIV
    Section 1. All persons born or naturalized in the United States, and subject 
    to the jurisdiction thereof, are citizens of the United States and of the 
    state wherein they reside. No state shall make or enforce any law which shall 
    abridge the privileges or immunities of citizens of the United States; nor 
    shall any state deprive any person of life, liberty, or property, without due 
    process of law; nor deny to any person within its jurisdiction the equal 
    protection of the laws. 
    Under this reading, the rights accorded under our federal constitution are 
    not extended beyond US Citizens without regard to location of those citizens. 
    I read this to require treatment by the US of US citizens abroad the same as 
    in the US.
    - Paul Gormley
    criminal defense attorney in Massachusetts
    Date: Wed, 14 Nov 2001 23:22:34 +0200 (EET)
    From: Jei <jeiat_private>
    To: Declan McCullagh <declanat_private>
    cc: politechat_private
    Subject: Re: FC: President Bush says military tribunals will try civilian
    You don't feel outraged if it applies ONLY to non-americans?
    How would you people feel if we took the same liberty
    to try and execute suspected American terrorists and
    hold secret tribunals for them? 
    It is just a question of perspective - one man's freedom fighter
    is another man's terrorist, like the Taleban have learned. The
    victor writes the history - and can re-write it again, like the
    Americans have proved to the Taleban.
    Why can't countries respect each other's citizens' rights? Or
    more specifically, why is it that America has such a big problem 
    understanding that perhaps the non-Americans consider themselves 
    worthy of the same basic human rights? Is that arrogant of (us)
    non-Americans? It is *this* very attitude which is birthing the 
    "hate" towards the US, that very "hate" which americans find so 
    hard to understand, and account it to envy and jealousy.
    If you can't afford to give other people/nations the respect 
    they deserve, you shouldn't expect to get any in return.
    From: "Mike Riddle" <mriddleat_private>
    Cc: "declanat_private" <declanat_private>
    Date: Wed, 14 Nov 2001 15:37:33 -0600
    >President Bush has quietly signed an executive order allowing civilians to
    >be tried by military tribunals. This may be outrageous.
    >I say "may be" because the degree to which we should be outraged depends on
    >the details of this not-yet-released executive order. Does the executive
    >order apply only to non-U.S. citizens, as some news reports say? Perhaps it
    >applies only abroad, to Al Qaeda saboteurs trying to blow up U.S. military
    >bases? Does it apply solely to illegal immigrants? If it applies to people
    >living in or visiting the U.S. legally, what happened to our Sixth
    >Amendment right "to a speedy and public trial, by an impartial jury?"
    Look up APPLICATION OF YAMASHITA, 327 U.S. 1 (1946), 
    <a href="http://laws.findlaw.com/us/327/1.html>Application of Yamashita, 327
    U.S. 1 (1946)</a>
    Read it with an eye to due process and particularly look at the dissent.
    Not encouraging at all.
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