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 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 --
(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.
This is what President Rooseveldt did to the Japanese at the start of World War II. Most of them were United States Citizens and proud to be Americans too, but they put them in prison camps anyway and kept them there until after the end of the war. Many died in those prison camps. There is nothing in this order to prevent the same thing from happening all over again.
No there isn't. Even the Supreme Court back then (the Korematsu ruling) felt more obligated to adhere to the public opinion than to the Constitution, which was (still is) a serious cause for concern. Saar
I dunno. I think Americans have constitutional rights, but these guys have taken every single freedom and right that we cherish and live by and used it against us. No doubt they intended to use the courts system against us also, if they were caught and tried. This has been done before and we didn't lose our contitutional rights. Does someone who is not a citizen even have constitutional rights?
Yes, they do. No queston about it. An illegal alien cannot be deported without a trial but it's done all the time every day of the year non-stop around the clock, but an American born American citizen can be deported without benefit of trial of any kind. It's done all the time. It isn't even a rare occurance either.
Mr. Korematsu, a US-born citizen, has lost quite a bit of his constitutional rights: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/323/214.html My "suggested reading" is the 3 dissenting opinions brought in that ruling. Saar
Sheesh, Saar: Why don't you at least give the poor lady a crying chance? Bringing up the Korematsu case against her statement is about like shooting a fly in the kitchen with a 12 gauge double barrel shotgun. LOL
I got no problem at all trying foreign nationals captured in foreign countries before military tribunals. What they did on Setp. 11th was a war crime and a crime against humanity . Justice needs to be done surely and swiftly. One thing a lot of people haven;t considered and that is compromising intelligence sources in an open court. This won't end with bin Laden. This fight will go on for years and years and we can't give away classified information to lawyers in a normal discovery proceeding. Also, you drag these terriost back to NYC. Can you protect jurors and their families from harm in coming years as the defendants associates try to avenge a conviction? These are no ordinary crimes nor an ordinary war. I fully support the President on this decision.
No offense taken, Saar. Discussion is good. I agree with keepmine. This is not a case of US citizens whose rights are being taken away. These are foreign nationals. When you look at the total picture, it makes sense not to use the US courts system to try them. However, vigilance on the issue of constitutional rights also makes sense. As I said in previous posts, it is not one point of view or the other that works so well in our democracy, it is the process of reconciling them. US citizens should never be treated the way the Japanese-Americans were treated during WWII. I don't think we would just stand by and watch that happen again.
I disagree - when I read this executive order the first thing I see is: "Detention, Treatment, and Trial of Certain Non-Citizens" Bill, please note NON CITIZENS. The Japanese interred during World War II were in the largest part American Citizens, many 2nd and 3rd generation - their detainment was based solely on their race - not on any other idea. The Supreme Court has upheld that foreign citizens, present in our country, have many of the same rights as American Citizens. Illegal Immigrants are deported daily - but they have no legal status in this country and this is a much different situation.
I can see where you have good reason to doubt based on what you read. Can't argue with that. But I also know that many of our laws are bent to suit the ideas and immediate needs of police and prosecutors who are far too overzealous in their efforts to prosecute by any means possible. They are not interested in such little trivialities. Been there lots of times and seen it happen to lots of people that just didn't know what their rights were nor what the law said or anything esle and served time over it because no attorney was available to them who would do any more than to see to it that they had some kind of counsel.
