|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
- Military Order - Detention,
Treatment and Trial of Certain Non-Citizens in the War Against
Terrorism." Executive Order dated November 13, 2001, 66 Fed. Reg.
57833 (Nov. 16, 2001).
November 16, 2001 issue of the Federal Register Scroll down to
the subject heading Presidential Documents to link to the Executive
Copy of the text on Findlaw
Text copy. WordPerfect document
- U.S. Department of Defense,
Military Commission Order No. 1 On March 21, 2002, the Department of
Defense issued an order providing for the procedures to be followed
by military commissions created by President Bush's executive order
dated November 13, 2001.
|Hearings of the United States
Senate Judiciary Committee on the Anti-Terrorism Policy of the Bush
Statement of Senator Patrick Leahy, Chairman, Judiciary Committee,
On The Administration's Executive Order On Military Tribunals. Nov.
Opening Statement of Senator Patrick Leahy "DOJ Oversight:
Preserving Our Freedoms While Defending Against Terrorism".
November 28, 2001
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
- 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
- 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,
the Law of War: Trying Terrorists as War Criminals before Military
Commissions", Congressional Research Service Report for Congress
(updated December 11, 2001).
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,
the Events of September 11th," ASIL Insights (December 2001).
- From Human Rights Watch:
- See also Human Rights Watch's
- 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
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
|Relevant Treaties and other Legal
Convention Relative to the Treatment of Prisoners of War of
August 12, 1949, T.I.A.S. 3364, 6 U.S.T. 3316, 75 U.N.T.S. 135
(1949). Unofficial copy at the Tufts Multilateral Conventions
II Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Victims of Non-International Conflicts, Dec. 12,
1977, 11 U.N.T.S. 3, 16 I.L.M. 1442 (1977).
United Nations Web Site on
Actions Against Terrorism The web site features full text
documents such as: General Assembly and Security Council
resolutions, reports of the Secretary-General and of the Sixth
Committee, Chapter VII of the UN Charter, UN and Specialized
Agencies legal instruments, press releases and news briefs. The
information is updated frequently and presented in a comprehensive
International Law in
Brief Special issue devoted to documents related to the 11
September 2001 attacks on the World Trade Center and the Pentagon
(October 23, 2001)
News and Legal
Resources, Information and Related Sources This web bibliography
provides links to current news, legal documents and background
information on the terrorist attacks on the United States.
Anti-Terrorism Treaties and Legislation A Web bibliography by
Marilyn Raisch of the University of Toronto providing information on
and links to anti-terrorism treaties and legislation.
Military Commissions: A Quick Guide to Available Resources. A
web resource on Military Tribunals by Stephen Young of the Kathryn
J. DuFour Law Library of the The Catholic University of America,
The USA Patriot Act
A Quick Guide to Available Resources on the Patriot Act
The USA Patriot Act Document
Anti-Terrorism Legislation and Civil Liberties
December 10, 2001. Last updated April 13, 2007.