How about this recent EO? Second paragraph."not Subject to
Judicial Review
Bush Orders Military Tribunals for Noncitizens Accused of Terrorist Acts
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IMMIGRATION LAW & POLICY
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BUSH ORDERS MILITARY TRIBUNALS FOR NONCITIZENS ACCUSED OF TERRORIST ACTS
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001
Drawing on his authority as commander-in-chief, President George W. Bush has signed an executive order allowing the use of military tribunals to try non-U.S. citizens accused of international terrorism. In issuing the order, which dispenses with the "principles of law and . . . rules of evidence generally recognized . . . by the U.S. district courts" in criminal trials, he cited the "extraordinary emergency" created by the September 11 terrorist attacks.
The Nov. 13, 2001, order has been the subject of intense controversy. It has elicited criticism from civil libertarians, immigrants' rights advocates, and lawmakers concerned with its sharp departure from longstanding principles and procedures of American jurisprudence. For example, the order appears to authorize tribunals to conduct proceedings outside public scrutiny, reach convictions on two-thirds majority votes, and issue sentences-even the death penalty-that are not subject to judicial review. In addition, some observers have pointed out that the order's death penalty provision may be affecting the support of some allies for the U.S.'s antiterrorism efforts. A number of European governments that do not sanction capital punishment have already stated that they will refuse requests to extradite individuals arrested in connection with the September 11 attacks.
Who is Affected by the Order? The executive order covers any individual who is not a U.S. citizen, who the president finds reason to believe is or was a member of the Al Quaeda organization. Also subject are persons who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism. . .that have caused, threaten to cause," or are intended to cause "injury to or adverse effects on the U.S., its citizens, national security, foreign policy, or the economy." Individuals who participate in activities in preparation for such terrorist acts are also subject to the order, as well as are persons who harbor members of Al Quaeda or others who have engaged in terrorist acts.
Such individuals must be detained, either inside or outside the U.S., and they must be treated humanely and provided adequate food, water, shelter, clothing, and medical attention. They must also be allowed, within the confines of their detention, to freely exercise their religion.
Military tribunals are authorized to try individuals for any and all offenses that they have allegedly committed that are covered by the order. Such individuals may be punished according to applicable law, including life imprisonment and, as noted above, the death penalty.
The Secretary of Defense' s Authority under the Order. The secretary of Defense is directed to appoint one or more military commissions and issue orders and regulations for conducting military tribunals. These rules must include provisions describing pretrial, trial and, post-trial procedures; modes of proof; issuance of process; and qualifications of attorneys. These regulations are to provide for
- military commissions to sit at any time and place;
- "full and fair trials," with the military commission sitting as trier of fact and law;
- admission of evidence that, in the opinion of the presiding officer, would have "probative value to a reasonable person" (at the time the presiding officer renders the opinion, a commission member may request that the commission adopt the opinion of the commission majority on the evidence at issue;
- the handling of evidence, material, or other information and the conducting and closing of proceedings in a manner consistent with Executive Order 12958 of Apr. 17, 1995 (which is concerned with classified national security information) and with related statutes and regulations;
- the conduct of the prosecution by one or more attorneys designated by the secretary of Defense and the conduct of the defense by attorneys on behalf of the individual subject to the order;
- convictions requiring only a two-thirds majority of commission members present at the time of the vote (a majority of the commission must be present for the vote);
- sentencing that also requires only a two-thirds majority of commission members present at the time of the vote (a majority of the commission must also be present for this vote); and
- submission of the trial record, including any conviction or sentence, for review and final decision by the president or the secretary of Defense, if so designated by the president.
Exclusive Jurisdiction and Relationship to Other Laws. In addition, under the order, military tribunals have exclusive jurisdiction over individuals subject to this order. They may not seek any remedy or maintain any proceeding, directly or indirectly, in any court of the United States, any state court, any court of any foreign nation, or any international tribunal.
Finally, the order specifies that nothing in it shall be construed to authorize the disclosure of state secrets to any person not authorized to have access to them; to limit the authority of the president to grant reprieves or pardons; or to limit the secretary of Defense's authority to try any person who is not subject to this order. Nor may it be interpreted to create any right, benefit, or privilege, enforceable at law or equity, by any party against the U.S., or any of its departments, agencies, or other entities.
Bush Order, "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism" (Nov. 13, 2001); published at 66 Fed. Reg. 57,831-36 (Nov. 16, 2001).
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