[Federal Register Volume 66, Number 222 (Friday, November 16, 2001)]
[Presidential Documents]
[Pages 57833-57836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28904]



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Part IV





The President





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Military Order of November 13, 2001--Detention, Treatment, and Trial of 
Certain Non-Citizens in the War Against Terrorism
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  Federal Register / Vol. 66, No. 222 / Friday, November 16, 2001 / 
Presidential Documents  

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 Title 3--
 The President

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                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 
                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

[[Page 57834]]

                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.

                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--

[[Page 57835]]

  (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

[[Page 57836]]

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.

                    (Presidential Sig.)B

                THE WHITE HOUSE,

                     November 13, 2001.

[FR Doc. 01-28904
Filed 11-15-01; 8:56 am]
Billing code 3195-01-P