Military Order:  Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

Authorization for Use of Military Force Joint Resolution (Public Law 107-40).
War Powers Resolution.

Articles 21 and 36, Uniform Code of Military Justice (10 U.S. Code 821, 836).

Executive Order: New Rule Letting Investigators Monitor Communications Between Terror Suspects And Defense Lawyers [PDF File] 

Executive Order: Ordering the Ready Reserve of the Armed Forces to Active Duty And Delegating Certain Authorities to the Secretary of Defense And the Secretary of Transportation Sep 14, 2001 

S. J. Res. 23: Authorization for Use of Military Force Sep 14, 2001 

H. R. 3162: USA PATRIOT Act of 2001 

NATO Invocation of Article 5. 
      Article 5, Washington Treaty (NATO)

Documents Specific to the Sept. 11 Terrorist Attacks

Classified Information.
Executive Order 12958 of April 17, 1995, regarding classified information.
Executive Order 12968
Executive Order 12972
Classified Information Procedures Act (CIPA).
MRE 505 (note avail on web).

Personnel Security Investigations
Adjudicative Desk Reference (ADR).  Important tool for those seeking to obtain or retain a security clearance.
Personnel Security in the Department of Defense (Report No. 97-196).
Other DoD security information is available at the Defense Security Service website.

 Rome Statute on the Int'l Criminal Ct.

United Nations, Treaty Collection:  Conventions on Terrorism

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973.  ---  International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979 --- International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997. --- International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999.

Plus a host of other international agreements - same subject.

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 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

Ex Parte Quirin 317 U.S. 1 (1942) [U.S. Supreme Court considers constitutionality of military commission established by President Roosevelt during World War II] 

Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). NOTE: This decision concerns German nationals accused of war crimes for assisting Japan after the surrender of Germany, but prior to the surrender of Japan. The German prisoners claimed Fifth Amendment violations. The Court denied the Germans could claim Fifth Amendment protections. To make its point, the Court referred to application of the rest bill of rights to hostile combatants as absurd. IThe Court listed the First, Fourth, Fifth and Sixth amendments as "companion civil-rights" along with the "right to bear arms as in the Second."(P. 784)]

In Re Application of Homma, 327 U.S. 759 (1946).  On motion for leave to file petition for writs of habeas corpus and prohibition and on petition for a writ of certiorari to the Supreme Court of the Commonwealth of the Philippines. The motion for leave to file petition for writ of habeas corpus and writ of prohibition is denied and the petition for writ of certiorari is also denied on authority of Application of Yamashita, and Yamashita v. Styer, 327 U.S. 1 , 66 S.Ct. 340. 

Mr. Justice MURPHY has filed a dissenting memorandum in which Mr. Justice RUTLEDGE concurs. Mr. Justice RUTLEDGE has filed a dissenting memorandum in which Mr. Justice MURPHY concurs.  This case, like In re Yamashita, 327 U.S. 1 , 66 S.Ct. 340, poses a problem that cannot be lightly brushed aside or given momentary consideration. It involves something more than the guilt of a fallen enemy commander under the law of war or the jurisdiction of a military commission. This nation's very honor, as well as its hopes for the future, is at stake. Either we conduct such a trial as this in the noble spirit and atmosphere of our Constitution or we abandon all pretense to justice, let the ages slip away and descend to the level of revengeful blood purges. Apparently the die has been cast in favor of the latter course. But I, for one, shall have no part in it, not even through silent acquiescence. 

Madsen v. Kinsella, 343 U.S. 341 (1952).  The United States Court of the Allied High Commission for Germany had jurisdiction, in 1950, to try petitioner, a civilian citizen of the United States who was the dependent wife of a member of the United States Armed Forces, on a charge of murdering her husband, in October 1949, within the United States Area of Control in Germany, in violation of 211 of the German Criminal Code. Pp. 342-362. 

Schlesinger v. Councilman, 420 U.S. 738 (1975) 

Application of Yamashita, 327 U.S. 1 (1946).

Find Law Resource on Current Terrorist cases.
Categories: Background: Prior Terrorism Cases, Airplane / Airport Security, Civil Cases, Terrorist Hoax Cases 

AVALON PROJECT of Yale Law School:  September 11, 2001 : Attack on America

The Nuremberg War Crimes Trials
A Look Back At Nuremberg

Yamashita:

The Bosnia War Crimes Tribunal

United Nations on Terrorism (Eng. language)

AKHIL REED AMAR AND VIKRAM DAVID AMAR: THE NEW REGULATION ALLOWING FEDERAL AGENTS TO MONITOR ATTORNEY-CLIENT CONVERSATIONS: WHY IT THREATENS FOURTH AMENDMENT VALUES.

IAN MYLCHREEST:  MR. ASHCROFT, MEET MR. PALMER:  SOME LESSONS FOR THE ATTORNEY GENERAL (AND ALL OF US) FROM THE 1919-20 TERRORIST ATTACKS.

THE CRITICS ARE WRONG: Why President Bush's Decision To Bring Foreign Terrorists To Justice Before Military Tribunals Should Not Offend Civil Libertarians By JOHN DEAN 

Military Commissions: Some Perhaps Legal, But Most Unwise  Professor Jordan J. Paust, University of Houston Law Center..

Are We Really at War? LtCol Gary D. Solis, USMC (Ret), USNI Proceedings. 

If It's War, Treat It That Way,.Capt Michael C. Farkas, USAR, USNI Proceedings. 

TERRORISM AND TERRORISTS 
  
Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President
U.S. Attorney General James Speed, 1865; PDF 

Civil Liberties in Wartime
U.S. Supreme Court Chief Justice William Rehnquist (2000; includes discussion of military commissions) 

Bush Order on Military Tribunals is Further Evidence That Government is Abandoning Democracy's Checks and Balances,  Statement of Laura W. Murphy, Director ACLU Washington National Office.

U.S.: New Military Commissions Threaten Rights, Credibility

USA: Presidential order on military tribunals threatens fundamental principles of justice

Recommendations for Accountability in Afghanistan

British Law Concerning Trials of War Criminal By Military Courts [a comparative view; University of the West of England] 

7 Duke J. of Comp. & Int'l L. 519, ACHIEVING JUSTICE BEFORE THE INTERNATIONAL WAR CRIMES TRIBUNAL: CHALLENGES FOR THE DEFENSE COUNSEL, MARK S. ELLIS.
 

OTHER LINKS OF INTEREST

September 11 Attacks: Crimes Against Humanity The Aftermath

UK: A shadow criminal justice system is unacceptable

U.S. War Crimes - Vietnam

http://www.hfhrpol.waw.pl/Secserv/fairtrial_us.html
http://wwwsecure.law.cornell.edu/background/ind_counsel/noble.htm
http://www.firstlegalcorp.com/manual/nationalsecurity.htm

National Committee of Employer Support for the Guard and Reserve (ESGR)

 Department of Labor

Soldiers' and Sailors' Civil Relief Act Provides Umbrella of Protection By Paul Stone, American Forces Information Service. Summarizes benefits available to reserves called to active duty, including reduced interest rates on mortgage payments, reduced interest rates on credit card debt, protection from eviction, and more. Apr 1999 

Guide to Reserve Family Member Benefits Covers benefits for military family members, including ID cards, medical benefits, commissary, exchange, and morale, welfare and recreation benefits, child care, legal assistance and more. 

A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act Covers employment and reemployment rights, how the law is enforced, a service member checklist and an employer obligations chart. Feb 2001. 

Uniformed Services Employment and Reemployment Act (USERRA) Advisor Helps veterans understand employee eligibility and job entitlements, employer obligations, benefits and remedies under the Act. 

Small Business Handbook: Uniformed Services Employment and Reemployment Rights Act (USERRA) Discusses who is covered, basic provisions, requirements, employee rights, and assistance available.