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Date: Thu, 15 Nov 2001 01:52:11 -0500
To: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
From: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
Subject: Bush Order on Military Tribunals...
Content-Type: text/plain; charset="us-ascii" ; format="flowed"
<p>
<<a href="http://www.aclu.org/news/2001/n111401b.html>">http://www.aclu.org/news/2001/n111401b.html></a>
<p>
Bush Order on Military Tribunals is Further Evidence
That Government is Abandoning Democracy's Checks and Balances
<p>
Statement of Laura W. Murphy, Director
ACLU Washington National Office
<p>
FOR IMMEDIATE RELEASE
Wednesday, November 14, 2001
WASHINGTON -- The American Civil Liberties Union is deeply disturbed
by President Bush's executive order allowing special military
tribunals to try non-citizens charged with terrorism. The tribunals
would even reach non-citizens in the United States, including lawful
permanent residents.
<p>
To our knowledge, the move to establish a military tribunal when
Congress has not declared war is unprecedented.
<p>
We do not believe that the Administration has shown that the
constitutional jury trial system does not allow for the prosecution
of those accused of terrorist activities. Absent such a compelling
justification, the President's decision is further evidence that the
Administration is totally unwilling to abide by the checks and
balances that are so central to our democracy.
<p>
The use of military tribunals would apparently authorize secret
trials without a jury and without the requirement of a unanimous
verdict and would limit a defendant's opportunities to confront the
evidence against him and choose his own lawyer. What's worse, these
important legal protections would be removed in a situation where
defendants may very well be facing the death penalty.
<p>
It is difficult to understand how the Administration can justify the
use of a tribunal when the United States has successfully tried in
our courts non-citizens accused of terrorist acts, organized crime,
and others in situations where the safety of jurors and the
disclosure of government intelligence methods were at issue.
<p>
As the prosecutions of the 1993 World Trade Center bombers and
Oklahoma City bomber Timothy McVeigh demonstrate, the government has
managed to protect the safety and identity of jurors while achieving
convictions in terrorism cases. And there is already a system
established to handle classified information in the course of a
trial; it is called the Classified Information Procedures Act. For
decades, CIPA has adequately balanced national security and due
process concerns. The government has made no showing that CIPA
procedures would not be adequate in these circumstances as well.
<p>
Further, it would be hypocritical of the United States to impose such
a tribunal when we have repeatedly protested the use of such courts
against U.S. citizens abroad.
<p>
Congress has already given the Administration and the Justice
Department virtually everything they asked for to fight terrorism.
This latest move, combined with the Justice Department's announced
intentions to eavesdrop on attorney conversations with inmates and to
begin interviewing foreign visitors to the United States,
demonstrates the government's increasing willingness to circumvent
the requirements of the Bill of Rights.
<p>
We call on Congress to exercise its oversight powers before the Bill
of Rights in America is distorted beyond recognition.
<p>
Copyright 2001, The American Civil Liberties Union
<p>
###
<p>
Date: Wed, 14 Nov 2001 23:44:49 -0500
From: Declan McCullagh <<a href="mailto:declan@well.com">declan@well.com</a>>
Subject: FC: Text of Bush's order creating military tribunals for civilians
<p>
Many folks wrote to me pointing out that President Bush's order was
online this morning, probably by the time I sent my note to
Politech. It also appeared in today's New York Times. Mea culpa. I
wrote my note last night, but did not doublecheck before sending it
out this morning and heading off to the Cato Institute conference for
the day.
<p>
I haven't has as much time to look at this as I'd like, but the order
says military tribunals will hear cases dealing with only an accused
terrorist "who is not a United States citizen."
<p>
Jason Zengerle has a perhaps-prescient article giving arguments
for a military tribunal here:
<a href="http://www.thenewrepublic.com/111901/zengerle111901.html">http://www.thenewrepublic.com/111901/zengerle111901.html</a>
<p>
Previous Politech message:
<a href="http://www.politechbot.com/p-02794.html">http://www.politechbot.com/p-02794.html</a>
<p>
-Declan
<p>
---
<p>
<a href="http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html">http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html</a>
<p>
For Immediate Release
Office of the Press Secretary
November 13, 2001
<p>
Military Order
Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism
<p>
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:
<p>
Section 1. Findings.
<p>
(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.
<p>
(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).
<p>
(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.
<p>
(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.
<p>
(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.
<p>
more
<p>
(OVER)
<p>
2
<p>
(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.
<p>
(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.
<p>
Sec. 2. Definition and Policy.
<p>
(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:
<p>
(1) there is reason to believe that such individual, at the relevant
<p>
times,
<p>
(i) is or was a member of the organization known as al Qaida;
<p>
(ii) has engaged in, aided or abetted, or conspired to commit,
<p>
acts of international terrorism, or acts in preparation therefor,
<p>
that have caused, threaten to cause, or have as their aim to
<p>
cause, injury to or adverse effects on the United States, its
<p>
citizens, national security, foreign policy, or economy; or
<p>
(iii) has knowingly harbored one or more individuals described in
<p>
subparagraphs (i) or (ii) of subsection 2(a)(1) of this order;
<p>
and
<p>
(2) it is in the interest of the United States that such individual
<p>
be subject to this order.
<p>
(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.
<p>
(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.
<p>
Sec. 3. Detention Authority of the Secretary of Defense. Any
individual subject to this order shall be --
<p>
(a) detained at an appropriate location designated by the Secretary
of Defense outside or within the United States;
<p>
(b) treated humanely, without any adverse distinction based on race,
color, religion, gender, birth, wealth, or any similar criteria;
<p>
more
<p>
3
<p>
(c) afforded adequate food, drinking water, shelter, clothing, and
medical treatment;
<p>
(d) allowed the free exercise of religion consistent with the
requirements of such detention; and
<p>
(e) detained in accordance with such other conditions as the
Secretary of Defense may prescribe.
<p>
Sec. 4. Authority of the Secretary of Defense Regarding Trials of
Individuals Subject to this Order.
<p>
(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.
<p>
(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.
<p>
(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 --
<p>
(1) military commissions to sit at any time and any place, consistent
<p>
with such guidance regarding time and place as the Secretary of
<p>
Defense may provide;
<p>
(2) a full and fair trial, with the military commission sitting as
<p>
the triers of both fact and law;
<p>
(3) admission of such evidence as would, in the opinion of the
<p>
presiding officer of the military commission (or instead, if any other
<p>
member of the commission so requests at the time the presiding officer
<p>
renders that opinion, the opinion of the commission rendered at that
<p>
time by a majority of the commission), have probative value to a
<p>
reasonable person;
<p>
(4) in a manner consistent with the protection of information
<p>
classified or classifiable under Executive Order 12958 of April 17,
<p>
1995, as amended, or any successor Executive Order, protected by
<p>
statute or rule from unauthorized disclosure, or otherwise protected
<p>
by law, (A) the handling of, admission into evidence of, and access to
<p>
materials and information, and (B) the conduct, closure of, and access
<p>
to proceedings;
<p>
(5) conduct of the prosecution by one or more attorneys designated by
<p>
the Secretary of Defense and conduct of the defense by attorneys for
<p>
the individual subject to this order;
<p>
(6) conviction only upon the concurrence of two-thirds of the members
<p>
of the commission present at the time of the vote, a majority being
<p>
present;
<p>
(7) sentencing only upon the concurrence of two-thirds of the members
<p>
of the commission present at the time of the vote, a majority being
<p>
present; and
<p>
more
<p>
(OVER)
<p>
4
<p>
(8) submission of the record of the trial, including any conviction
<p>
or sentence, for review and final decision by me or by the Secretary
<p>
of Defense if so designated by me for that purpose.
<p>
Sec. 5. Obligation of Other Agencies to Assist the Secretary of
Defense.
<p>
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.
<p>
Sec. 6. Additional Authorities of the Secretary of Defense.
<p>
(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.
<p>
(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.
<p>
Sec. 7. Relationship to Other Law and Forums.
<p>
(a) Nothing in this order shall be construed to --
<p>
(1) authorize the disclosure of state secrets to any person not
<p>
otherwise authorized to have access to them;
<p>
(2) limit the authority of the President as Commander in Chief of the
<p>
Armed Forces or the power of the President to grant reprieves and
<p>
pardons; or
<p>
(3) limit the lawful authority of the Secretary of Defense, any
<p>
military commander, or any other officer or agent of the United States
<p>
or of any State to detain or try any person who is not an individual
<p>
subject to this order.
<p>
(b) With respect to any individual subject to this order --
<p>
(1) military tribunals shall have exclusive jurisdiction with respect
<p>
to offenses by the individual; and
<p>
(2) the individual shall not be privileged to seek any remedy or
<p>
maintain any proceeding, directly or indirectly, or to have any such
<p>
remedy or proceeding sought on the individual's behalf, in (i) any
<p>
court of the United States, or any State thereof, (ii) any court of
<p>
any foreign nation, or (iii) any international tribunal.
<p>
(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.
<p>
(d) For purposes of this order, the term "State" includes any State,
district, territory, or possession of the United States.
<p>
more
<p>
5
<p>
(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.
<p>
Sec. 8. Publication.
<p>
This order shall be published in the Federal Register.
<p>
GEORGE W. BUSH
<p>
THE WHITE HOUSE,
<p>
November 13, 2001.
<p>
# # #
<p>
<p>
<p>
<p>
---
<p>
From: <a href="mailto:PRGormley@aol.com">PRGormley@aol.com</a>
Subject: Re: FC: President Bush says military tribunals will try civilian cases
To: <a href="mailto:declan@well.com">declan@well.com</a>
<p>
It's simple, maybe unethical and way off the moral high ground we claim to be
staking out but effective and legal under the US Constitution. Make sure you
check for any text that says these protections apply to non-citizens. While
I am unqualified to comment on the national security aspect of these issues,
there certainly are security issues presented by them. I quote the US
Constitution, 14th Amendment:
<p>
Amendment XIV
<p>
Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the
state wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
<p>
<p>
Under this reading, the rights accorded under our federal constitution are
not extended beyond US Citizens without regard to location of those citizens.
I read this to require treatment by the US of US citizens abroad the same as
in the US.
<p>
- Paul Gormley
criminal defense attorney in Massachusetts
<p>
---
<p>
Date: Wed, 14 Nov 2001 23:22:34 +0200 (EET)
From: Jei <<a href="mailto:jei@cc.hut.fi">jei@cc.hut.fi</a>>
To: Declan McCullagh <<a href="mailto:declan@well.com">declan@well.com</a>>
cc: <a href="mailto:politech@politechbot.com">politech@politechbot.com</a>
Subject: Re: FC: President Bush says military tribunals will try civilian
cases
<p>
You don't feel outraged if it applies ONLY to non-americans?
<p>
How would you people feel if we took the same liberty
to try and execute suspected American terrorists and
hold secret tribunals for them?
<p>
It is just a question of perspective - one man's freedom fighter
is another man's terrorist, like the Taleban have learned. The
victor writes the history - and can re-write it again, like the
Americans have proved to the Taleban.
<p>
Why can't countries respect each other's citizens' rights? Or
more specifically, why is it that America has such a big problem
understanding that perhaps the non-Americans consider themselves
worthy of the same basic human rights? Is that arrogant of (us)
non-Americans? It is *this* very attitude which is birthing the
"hate" towards the US, that very "hate" which americans find so
hard to understand, and account it to envy and jealousy.
<p>
If you can't afford to give other people/nations the respect
they deserve, you shouldn't expect to get any in return.
<p>
---
<p>
From: "Mike Riddle" <<a href="mailto:mriddle@monarch.papillion.ne.us">mriddle@monarch.papillion.ne.us</a>>
Cc: <a href="mailto:"declan@well.com"">"declan@well.com"</a> <<a href="mailto:declan@well.com">declan@well.com</a>>
Date: Wed, 14 Nov 2001 15:37:33 -0600
<p>
<p>
>President Bush has quietly signed an executive order allowing civilians to<br>
>be tried by military tribunals. This may be outrageous.<br>
><br>
>I say "may be" because the degree to which we should be outraged depends on<br>
>the details of this not-yet-released executive order. Does the executive<br>
>order apply only to non-U.S. citizens, as some news reports say? Perhaps it<br>
>applies only abroad, to Al Qaeda saboteurs trying to blow up U.S. military<br>
>bases? Does it apply solely to illegal immigrants? If it applies to people<br>
>living in or visiting the U.S. legally, what happened to our Sixth<br>
>Amendment right "to a speedy and public trial, by an impartial jury?"<br>
<p>
Look up APPLICATION OF YAMASHITA, 327 U.S. 1 (1946),
<a href="http://laws.findlaw.com/us/327/1.html">http://laws.findlaw.com/us/327/1.html</a>
<p>
<a href="<a href="http://laws.findlaw.com/us/327/1.html>Application">http://laws.findlaw.com/us/327/1.html>Application</a> of Yamashita, 327
U.S. 1 (1946)</a>
<p>
Read it with an eye to due process and particularly look at the dissent.
<p>
Not encouraging at all.
<p>
---
<p>
<p>
<p>
<hr>
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