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President Bush Signs Executive Order
Authorizing Military Tribunals

On November 13, 2001, President George W. Bush signed an executive order authorizing the creation of military tribunals for the detention, treatment and trial of certain non-citizens in the war against terrorism. The order is one of the tactics taken by the United States government to combat terrorism as a result of the attacks on the World Trade Center and the Pentagon on September 11, 2001.

In the executive order, President Bush finds, "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 the 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" Section 1(f). The President further finds, "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." Section 1(g).

The order then defines the individuals subject to the order as follows: members of the organization known as al Qaida,  individuals who have engaged in, aided, or abetted acts of international terrorism or individuals who have knowingly harbored such international terrorists. Section 2(a). The military tribunals shall have exclusive jurisdiction with respect to offenses by the individuals subject to the order. Section 7(b)(1). The individuals subject to the order shall not be privileged to seek any remedy or maintain any proceeding in any court of the United States or any State thereof, any court of a foreign nation, or any international tribunal. When tried, an individual subject to the order shall be tried by military commission. The commission may convict upon concurrence of two-thirds of the members of the commission, a majority being present, [Section 4(c)(6)], and the commission may sentence the individual upon the concurrence of two-thirds of the members of the commission, a majority being present. Section 4(c)(7). Sentences may include life imprisonment or death. Section 4(a).

The order has met with support and criticism from the press, the practicing bar, the academy and the U.S. Congress. Administration officials have stated that they will clarify the details of operating the military tribunals in the near future.

Text of Executive Order
Hearings of the United States Senate Judiciary Committee on the Anti-Terrorism Policy of the Bush Administration
  • Statement of Senator Patrick Leahy, Chairman, Judiciary Committee, On The Administration's Executive Order On Military Tribunals. Nov. 14, 2001
  • Opening Statement of Senator Patrick Leahy "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism". November 28, 2001
  • November 28, 2001 Hearing Notice of Full Committee Hearing Time Change
  • United States Supreme Court Decisions Considering the Validity of Military Tribunals
    • Application of Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946). The U.S. Supreme Court denied the application by General Tomoyuki Yamashita for a writ of habeas corpus and held that Yamashita's conviction on charges of the violation of the law of war by a U.S. milittary commission met the requirements of due process under the U.S. Constitution. Yamashita was the commanding officer of Japanese military forces in the Philippines during World War II. In dissenting opinions, Justice Murphy and Rutledge argued vigorously that the conviction of Yamashita viotated due process requirements.
    • Ex parte Quirin, 317 U.S. 1, 87 L.Ed. 7 (1942). In this wartime opinion, the U.S. Supreme Court overruled the Milligan decision described below and upheld the use of military tribunals in trying Nazi soldiers.
    • Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law. New York: Viking Press (1956). This book contains a significant analysis of the Quirin decision in Chapter 39 entitled "Inter Arma Silent Leges" (pages 647-71).
    • Ex parte Milligan, 71 U.S. 2, 18 L.Ed. 281 (1866). The U.S. Supreme Court invalidated the use of military tribunals in the conviction of several former Confederate soldiers.
    Background
    • Hon. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime. New York: Vintage Books (1998). In a prescient book, Rehnquist provides an insightful and fascinating account of the history of civil liberties during wartime and illuminates the cases where presidents have suspended the law in the name of national security. The concluding chapter is entitled "Inter Arma Silent Leges", or In times of war the laws are silent.
    • Spencer J. Crona and Neal A. Richardson,   "Justice for War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism", 12 Okla. City Univ. L. Rev. 349 (1996).
    • Human Rights in the Age of Terrorism Panel Discussion hosted by the Columbia Law School and The American Society of International Law (Dec. 10, 2001)
    • Laurence H. Tribe and Neal Kumar Katyal, "Waging War, deciding Guilt; Trying the Constitutionality of the Military Tribunals" 111 Yale Law Journal 101 (April 2002).
      In this paper, the authors argue that President Bush's recent Military order, which directs his Defense Department to detain any of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future.
    • Mark A. Drumbl, "Responsibility, Accountability, and Innocence: Judging the September 11 Terrorist Attack," Washington and Lee Public Law Research Paper No. 01-21
      In this Article, the author defines the September 11 attack on the Pentagon and the World Trade Center as a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non state-actor. Although this means that the attack contains elements of both an armed attack and a criminal attack, this Article proposes that the attack should be treated as a criminal attack. Rather, the war-like nature of the attack suggest that it must be recognized as being an act of radical evil that lodges itself among the "most serious crimes of concern to the international community as a whole." Accordingly, it is to be addressed by international criminal law through a multilateral, cross-civilization, open, and pluralist process.
    • George P. Fletcher, "On Justice and War: Contradictions in the Proposed Military Tribunals," 25 Harvard Journal of Law and Public Policy 635 (2002). In this article, Professor Fletcher argues that the Bush order deprives individuals of constitutional rights to "an independent court, a jury trial, and a right to have full access to the evidence used to support a conviction." In analyzing the Quirin and Yamashita decisions, Fletcher concludes that neither case "provides a basis for upholding the proposed tribunals as constitutional."
    • Kenneth Anderson, "What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base." 25 Harvard Journal of Law and Public Policy 591 (2002). The author argues, "Imperfect as the Military Order is, the fundamental concept of using military commissions is morally, politically, and legally justified." In support of his argument Anderson examines the various options for punishing Al Qaeda terrorists: international tribunals, trials in United States district courts, and military commissions.
    • Diane F. Orentlicher and Robert Kogod Goldman, "When Justice Goes to War: Prosecuting Terrorists Before Military Commissions," 25 Harvard Journal of Law and Public Policy 653 (2002). The authors contend that "the Military Order exceeds the President's constitutional authority to establish military commissions and imperils core constitutional values." The authors recommend trials in the federal courts as the better solution to bringing terrorists to justice.
    • Jennifer Elsea, "Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions", Congressional Research Service Report for Congress (updated December 11, 2001).
    • Terrorism and Military Tribunals/ Commissions Background Materials and Links prepared by the National Institute of Military Justice. This web page contains an extensive collection of links and citations to materials related to military commissions.
    • Ruth Wedgwood, "Tribunals and the Events of September 11th," ASIL Insights (December 2001).
    • From Human Rights Watch:
    • See also Human Rights Watch's related pages:
    • David Scheffer, Options for Prosecuting International Terrorists, Special Report by the United States Institute of Peace.
      Written by the former U.S. ambassador at large for war crimes issues, this report examines the options to be faced by policymakers in prosecuting international terrorists once they surrender or are apprehended.
    • National Security Archive, "The September 11th Sourcebooks," Prepared by a non-governmental, non-profit institution, this electronic resource contains primary source material on U.S. policy against terrorism. Most of the material was obtained through Freedom of Information Act requests.
    Relevant Treaties and other Legal Documents

    Written December 10, 2001. Last updated April 13, 2007.


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