Laws: Cases and Codes : U.S. Code : Title 10 : Section 801
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U.S. Code as of:
01/19/04
Section 801 - Notes
SOURCE
(Aug. 10, 1956, ch. 1041, 70A Stat. 36; Pub. L. 89-670, Sec. 10(g),
Oct. 15, 1966, 80 Stat. 948; Pub. L. 90-179, Sec. 1(1), (2), Dec.
8, 1967, 81 Stat. 545; Pub. L. 90-632, Sec. 2(1), Oct. 24, 1968, 82
Stat. 1335; Pub. L. 98-209, Secs. 2(a), 6(a), Dec. 6, 1983, 97
Stat. 1393, 1400; Pub. L. 100-180, div. A, title XII, Sec.
1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100-456, div. A,
title XII, Sec. 1233(f)(1), Sept. 29, 1988, 102 Stat. 2057; Pub. L.
104-106, div. A, title XI, Sec. 1141(b), Feb. 10, 1996, 110 Stat.
467; Pub. L. 107-296, title XVII, Sec. 1704(b)(2), Nov. 25, 2002,
116 Stat. 2314.)
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and assets of
the Coast Guard, including the authorities and functions of the
Secretary of Transportation relating thereto, to the Department of
Homeland Security, and for treatment of related references, see
sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
Security, and the Department of Homeland Security Reorganization
Plan of November 25, 2002, as modified, set out as a note under
section 542 of Title 6.
DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR
AGAINST TERRORISM
Military Order of President of the United States, dated Nov. 13,
2001, 66 F.R. 57833, provided:
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) [50 U.S.C. 1541 note] 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 [50
U.S.C. 1621 note]).
(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 [50 U.S.C. 435 note], 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.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1044, 1044d of this
title; title 18 section 3267; title 37 section 321; title 42
section 665.
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