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

[Declan McCullagh <declan () well com>]

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:
http://www.thenewrepublic.com/111901/zengerle111901.html

Previous Politech message:
http://www.politechbot.com/p-02794.html

-Declan

---

http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
   
                                                    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.
   
   more
   
   (OVER)
   
   2
   
   (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;
   
   more
   
   3
   
   (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
   
   more
   
   (OVER)
   
   4
   
   (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.
   
   more
   
   5
   
   (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.
   
                                   # # #
   



---

From: PRGormley () aol com
Subject: Re: FC: President Bush says military tribunals will try civilian cases
To: declan () well com

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 <jei () cc hut fi>
To: Declan McCullagh <declan () well com>
cc: politech () politechbot com
Subject: Re: FC: President Bush says military tribunals will try civilian
 cases

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" <mriddle () monarch papillion ne us>
Cc: "declan () well com" <declan () well com>
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), 
http://laws.findlaw.com/us/327/1.html 

<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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