Rosenfeld Susan. Encyclopedia of American Historical Documents

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National Endowment for the Arts

v. Finley, 1998

U.S. Supreme Court decision delivered June 25, 1998, that

upheld a 1990 congressional mandate requiring the National

Endowment for the Arts (NEA) to consider “general standards

of decency” and “values of the American public” when decid-

ing which projects to fund. Performance artist Karen Finley

and three other plaintiffs in the case called the mandate

unconstitutional and claimed that they had been denied fund-

ing from the NEA because of the content of their work. The

Court’s majority opinion rebuffed their claim contending that

the congressional mandate “stops well short of an absolute

restriction” and that “it does not preclude awards to projects

that might be declared ‘indecent’ or ‘disrespectful.’” In his dis-

senting opinion, Justice David Souter stated that Congress’s

mandate was a violation of the First Amendment because it

amounted to “viewpoint discrimination” and because

“Congress’s purpose in imposing the decency and respect cri-

teria was to prevent funding of art that conveys an offensive

message.”

________________________

_______________________

JUSTICE O’CONNOR delivered the opinion of the

Court.

The National Foundation on the Arts and Humanities

Act, as amended in 1990, requires the Chairperson of the

National Endowment for the Arts (NEA) to ensure that

“artistic excellence and artistic merit are the criteria by

which [grant] applications are judged, taking into consid-

eration general standards of decency and respect for the

diverse beliefs and values of the American public.” 20

U.S.C. § 954(d)(1). In this case, we review the Court of

Appeals’ determination that §954(d)(1), on its face, imper-

missibly discriminates on the basis of viewpoint and is void

for vagueness under the First and Fifth Amendments. We

conclude that §954(d)(1) is facially valid, as it neither

inherently interferes with First Amendment rights nor vio-

lates constitutional vagueness principles.

With the establishment of the NEA in 1965, Congress

embarked on a “broadly conceived national policy of sup-

port for the . . . arts in the United States,” see §953(b),

pledging federal funds to “help create and sustain not only

a climate encouraging freedom of thought, imagination,

and inquiry but also the material conditions facilitating the

release of . . . creative talent.” §951(7). The enabling

statute vests the NEA with substantial discretion to award

grants; it identifies only the broadest funding priorities,

including “artistic and cultural significance, giving empha-

sis to American creativity and cultural diversity,” “profes-

sional excellence,” and the encouragement of “public

knowledge, education, understanding, and appreciation of

the arts.” See §§954(c)(1)–(10). Applications for NEA

funding are initially reviewed by advisory panels composed

of experts in the relevant field of the arts. Under the 1990

Amendments to the enabling statute, those panels must

reflect “diverse artistic and cultural points of view” and

include “wide geographic, ethnic, and minority represen-

tation,” as well as “lay individuals who are knowledgeable

about the arts.” §§959(c)(1)–(2). The panels report to the

26-member National Council on the Arts (Council),

which, in turn, advises the NEA Chairperson. The Chair-

person has the ultimate authority to award grants but may

not approve an application as to which the Council has

made a negative recommendation. §955(f).

Since 1965, the NEA has distributed over three billion

dollars in grants to individuals and organizations, funding

that has served as a catalyst for increased state, corporate,

and foundation support for the arts. Congress has recently

restricted the availability of federal funding for individual

artists, confining grants primarily to qualifying organiza-

tions and state arts agencies, and constraining sub-grant-

ing. See Department of the Interior and Related Agencies

Appropriations Act, 1998, Pub. L. 105-83, §329, 111 Stat.

1600. By far the largest portion of the grants distributed in

fiscal year 1998 were awarded directly to state arts agen-

cies. In the remaining categories, the most substantial

grants were allocated to symphony orchestras, fine arts

museums, dance theater foundations, and opera associa-

tions. See National Endowment for the Arts, FY 1998

Grants, Creation & Presentation 5–8, 21, 20, 27.

Throughout the NEA’s history, only a handful of the

agency’s roughly 100,000 awards have generated formal

complaints about misapplied funds or abuse of the public’s

trust. Two provocative works, however, prompted public

controversy in 1989 and led to congressional revaluation of

the NEA’s funding priorities and efforts to increase over-

sight of its grant-making procedures. The Institute of Con-

temporary Art at the University of Pennsylvania had used

$30,000 of a visual arts grant it received from the NEA to

fund a 1989 retrospective of photographer Robert Map-

plethorpe’s work. The exhibit, entitled The Perfect

Moment, included homoerotic photographs that several

Members of Congress condemned as pornographic. See,

e.g., 135 Cong. Rec. 22372 (1989). Members also de-

nounced artist Andres Serrano’s work Piss Christ, a photo-

graph of a crucifix immersed in urine. See, e.g., id., at

9789. Serrano had been awarded a $15,000 grant from the

Southeast Center for Contemporary Art, an organization

that received NEA support.

When considering the NEA’s appropriations for fiscal

year 1990, Congress reacted to the controversy surround-

1782 ERA 10: Contemporary United States

ing the Mapplethorpe and Serrano photographs by elimi-

nating $45,000 from the agency’s budget, the precise

amount contributed to the two exhibits by NEA grant

recipients. Congress also enacted an amendment provid-

ing that no NEA funds “may be used to promote, dissem-

inate, or produce materials which in the judgment of [the

NEA] may be considered obscene, including but not lim-

ited to, depictions of sadomasochism, homoeroticism, the

sexual exploitation of children, or individuals engaged in

sex acts and which, when taken as a whole, do not have

serious literary, artistic, political, or scientific value.” D of

the Interior and Related Agencies Appropriations Act,

1990, Pub. L. 101-121, 103 Stat. 738, 738–742. The NEA

implemented Congress’ mandate by instituting a require-

ment that all grantees certify in writing that they would not

utilize federal funding to engage in projects inconsistent

with the criteria in the 1990 appropriations bill. That cer-

tification requirement was subsequently invalidated as

unconstitutionally vague by a Federal District Court, see

Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F.

Supp. 774 (CD Cal. 1991), and the NEA did not appeal

the decision.

In the 1990 appropriations bill, Congress also agreed

to create an Independent Commission of constitutional

law scholars to review the NEA’s grant-making procedures

and assess the possibility of more focused standards for

public arts funding. The Commission’s report, issued in

September 1990, concluded that there is no constitutional

obligation to provide arts funding, but also recommended

that the NEA rescind the certification requirement and

cautioned against legislation setting forth any content

restrictions. Instead, the Commission suggested procedu-

ral changes to enhance the role of advisory panels and a

statutory reaffirmation of “the high place the nation

accords to the fostering of mutual respect for the disparate

beliefs and values among us.” See Independent Commis-

sion, Report to Congress on the National Endowment for

the Arts 83–91 (Sept. 1990), 3 Record, Doc. No. 151, Exh.

K (hereinafter Report to Congress).

Informed by the Commission’s recommendations, and

cognizant of pending judicial challenges to the funding lim-

itations in the 1990 appropriations bill, Congress debated

several proposals to reform the NEA’s grant-making pro-

cess when it considered the agency’s reauthorization in the

fall of 1990. The House rejected the Crane Amendment,

which would have virtually eliminated the NEA, see 136

Cong. Rec. 28656–28657 (1990), and the Rohrabacher

Amendment, which would have introduced a prohibition

on awarding any grants that could be used to “promote, dis-

tribute, disseminate, or produce matter that has the pur-

pose or effect of denigrating the beliefs, tenets, or objects

of a particular religion” or “of denigrating an individual, or

group of individuals, on the basis of race, sex, handicap, or

national origin,” id., at 28657–28664. Ultimately, Congress

adopted the Williams/Coleman Amendment, a bipartisan

compromise between Members opposing any funding re-

strictions and those favoring some guidance to the agency.

In relevant part, the Amendment became §954(d)(1),

which directs the Chairperson, in establishing procedures

to judge the artistic merit of grant applications, to “tak[e]

into consideration general standards of decency and

respect for the diverse beliefs and values of the American

public.”

The NEA has not promulgated any official interpreta-

tion of the provision, but in December 1990, the Council

unanimously adopted a resolution to implement

§954(d)(1) merely by ensuring that the members of the

advisory panels that conduct the initial review of grant

applications represent geographic, ethnic, and aesthetic

diversity. See Minutes of the Dec. 1990 Retreat of the

National Council on the Arts, reprinted in App. 12-13;

Transcript of the Dec. 1990 Retreat of the National Coun-

cil on the Arts, reprinted in id., 32–33. John Frohnmayer,

then Chairperson of the NEA, also declared that he would

“count on [the] procedures” ensuring diverse membership

on the peer review panels to fulfill Congress’ mandate . . .

Section 954(d)(1) merely adds some imprecise consid-

erations to an already subjective selection process. It does

not, on its face, impermissibly infringe on First or Fifth

Amendment rights. Accordingly, the judgment of the

Court of Appeals is reversed and the case is remanded for

further proceedings consistent with this opinion . . .

Source:

Landmark Documents in American History, Facts On File, Inc.

George W. Bush, Executive Order

Establishing White House Office of

Faith-Based Initiatives, 2001

In the early 21st century many social issues, including teen-

aged pregnancies, alcoholism and drug abuse, and domestic

violence, continue to plague American communities. Govern-

ment-sponsored programs and private charities had limited

success in curbing these problems. George W. Bush pointed to

the success of religious (i.e., faith-based) groups in turning

around at-risk individuals. Early in his presidency he sought to

find a way to help these organizations without infringing on

the First Amendment. To achieve this goal he created the

Office of Faith-Based Initiatives in the White House and des-

ignated five Executive Department Centers for Faith-Based and

Community Initiatives in the Departments of Justice, Educa-

tion, Labor, Health and Human Services, and Housing and

Urban Development. The program met with resistance from

Social Developments 1783

civil liberties groups as well as religious organizations, which

were concerned about the restrictions imposed on them in

order to receive federal funds. Nevertheless, in 2002 the vari-

ous centers were administering grants and the White House

was sponsoring activities implementing the program.

________________________

_______________________

By the authority vested in me as President of the United

States by the Constitution and the laws of the United

States of America, and in order to help the Federal Gov-

ernment coordinate a national effort to expand opportuni-

ties for faith-based and other community organizations

and to strengthen their capacity to better meet social

needs in America’s communities, it is hereby ordered as

follows:

Section 1. Policy. Faith-based and other community

organizations are indispensable in meeting the needs of

poor Americans and distressed neighborhoods. Govern-

ment cannot be replaced by such organizations, but it can

and should welcome them as partners. The paramount

goal is compassionate results, and private and charitable

community groups, including religious ones, should have

the fullest opportunity permitted by law to compete on a

level playing field, so long as they achieve valid public pur-

poses, such as curbing crime, conquering addiction,

strengthening families and neighborhoods, and overcoming

poverty. This delivery of social services must be results ori-

ented and should value the bedrock principles of pluralism,

nondiscrimination, evenhandedness, and neutrality.

Sec. 2. Establishment. There is established a White

House Office of Faith-Based and Community Initiatives

(White House OFBCI) within the Executive Office of the

President that will have lead responsibility in the executive

branch to establish policies, priorities, and objectives for

the Federal Government’s comprehensive effort to enlist,

equip, enable, empower, and expand the work of faith-

based and other community organizations to the extent

permitted by law.

Sec. 3. Functions. The principal functions of the

White House OFBCI are, to the extent permitted by law:

(a) to develop, lead, and coordinate the Administration’s

policy agenda affecting faith-based and other community

programs and initiatives, expand the role of such efforts in

communities, and increase their capacity through execu-

tive action, legislation, Federal and private funding, and

regulatory relief;

(b) to ensure that Administration and Federal Gov-

ernment policy decisions and programs are consistent with

the President’s stated goals with respect to faith-based and

other community initiatives;

affecting faith-based and other community organizations

across the Federal Government;

(d) to coordinate public education activities designed

to mobilize public support for faith-based and community

nonprofit initiatives through volunteerism, special pro-

jects, demonstration pilots, and public-private partner-

ships;

(e) to encourage private charitable giving to support

faith-based and community initiatives;

(f) to bring concerns, ideas, and policy options to the

President for assisting, strengthening, and replicating suc-

cessful faith-based and other community programs;

(g) to provide policy and legal education to State,

local, and community policymakers and public officials

seeking ways to empower faith-based and other commu-

nity organizations and to improve the opportunities, capac-

ity, and expertise of such groups;

(h) to develop and implement strategic initiatives

under the President’s agenda to strengthen the institu-

tions of civil society and America’s families and commu-

nities;

(i) to showcase and herald innovative grassroots non-

profit organizations and civic initiatives;

(j) to eliminate unnecessary legislative, regulatory,

and other bureaucratic barriers that impede effective

faith-based and other community efforts to solve social

problems;

(k) to monitor implementation of the President’s

agenda affecting faith-based and other community organi-

zations; and

(l) to ensure that the efforts of faith-based and other

community organizations meet high standards of excel-

lence and accountability.

Sec. 4. Administration. (a) The White House OFBCI

may function through established or ad hoc committees,

task forces, or interagency groups.

(b) The White House OFBCI shall have a staff to be

headed by the Assistant to the President for Faith-Based

and Community Initiatives. The White House OFBCI

shall have such staff and other assistance, to the extent per-

mitted by law, as may be necessary to carry out the provi-

sions of this order. The White House OFBCI operations

shall begin no later than 30 days from the date of this

order.

the liaison and point of contact designated by each execu-

tive department and agency with respect to this initiative.

(d) All executive departments and agencies (agencies)

shall cooperate with the White House OFBCI and provide

such information, support, and assistance to the White

House OFBCI as it may request, to the extent permitted

by law.

(e) The agencies? actions directed by this Executive

Order shall be carried out subject to the availability of

appropriations and to the extent permitted by law.

1784 ERA 10: Contemporary United States

Sec. 5. Judicial Review. This order does not create

any right or benefit, substantive or procedural, enforceable

at law or equity by a party against the United States, its

agencies or instrumentalities, its officers or employees, or

any other person.

GEORGE W. BUSH

THE WHITE HOUSE, January 29, 2001

Source:

The White House. Available on-line. URL: www.whitehouse.gov/

news/releases/2002/01/20010129-2.html. Accessed Novem-

ber 2003.

George W. Bush, Presidential Address

following the September 11th

Terrorist Attacks, 2001

On the morning of September 11, 2002, two hijacked planes

crashed into each of the twin towers of the World Trade Cen-

ter in New York City. Within less than two hours, both build-

ings collapsed, killing almost 2,749 people (as of February

2004; the exact number may never be known), including more

than 300 firefighters and police who had come to the rescue.

Another hijacked plane hit the Pentagon in Washington, D.C.,

killing 184 individuals. Hearing over cell and airphones about

the first three crashes, passengers in a fourth hijacked plane

attacked the four perpetrators, and that plane, carrying 44 peo-

ple, crashed into a Pennsylvania field. A prisoner who claimed

knowledge of the plot later said that plane was aiming for the

U.S. Capitol.

President George W. Bush was reading a story to school-

children when he was told of the attack. He spent the rest of

the day flying to different cities around the country. Vice Pres-

ident Richard Cheney and other high-level officials were evac-

uated to a secret hideout, where the vice president remained

off and on for weeks. This was the worst terrorist attack in

terms of lives lost to occur anywhere, and the president treated

it as a real—not a metaphorical—war against terrorism gener-

ally, and against the alleged perpetrators, followers of Osama

bin Laden (al-Qaeda) in particular. Visibly shaken earlier in the

day, Bush regained his composure to deliver this message of

condolence and encouragement to a country in shock and

mourning.

Four days later, in response to the September 11 terrorist

attacks, Bush declared a national emergency, a condition

not defined in any of the pertinent federal regulations, that

gives the president enhanced power. His proclamation listed

the relevant sections of the U.S. Code and his intent to sus-

pend the laws that limit his ability to keep more troops avail-

able. In addition, he claimed the authority to call the reserves

to active duty and to increase military funding beyond

what had been allowed in the year’s budget. Essentially, this

declaration prepared the armed forces and Coast Guard for

war.

________________________

_______________________

Good evening. Today, our fellow citizens, our way of life,

our very freedom came under attack in a series of deliber-

ate and deadly terrorist acts. The victims were in airplanes,

or in their offices; secretaries, businessmen and women,

military and federal workers; moms and dads, friends and

neighbors. Thousands of lives were suddenly ended by

evil, despicable acts of terror.

The pictures of airplanes flying into buildings, fires

burning, huge structures collapsing, have filled us with dis-

belief, terrible sadness, and a quiet, unyielding anger.

These acts of mass murder were intended to frighten our

nation into chaos and retreat. But they have failed; our

country is strong.

A great people has been moved to defend a great

nation. Terrorist attacks can shake the foundations of our

biggest buildings, but they cannot touch the foundation of

America. These acts shattered steel, but they cannot dent

the steel of American resolve.

America was targeted for attack because we’re the

brightest beacon for freedom and opportunity in the

world. And no one will keep that light from shining.

September 11, 2001, and Aftermath 1785

September 11, 2001, and Aftermath

Today, our nation saw evil, the very worst of human

nature. And we responded with the best of America —

with the daring of our rescue workers, with the caring for

strangers and neighbors who came to give blood and help

in any way they could.

Immediately following the first attack, I implemented

our government’s emergency response plans. Our military

is powerful, and it’s prepared. Our emergency teams are

working in New York City and Washington, D.C. to help

with local rescue efforts.

Our first priority is to get help to those who have

been injured, and to take every precaution to protect our

citizens at home and around the world from further

attacks.

The functions of our government continue without

interruption. Federal agencies in Washington which had to

be evacuated today are reopening for essential personnel

tonight, and will be open for business tomorrow. Our

financial institutions remain strong, and the American

economy will be open for business, as well.

The search is underway for those who are behind

these evil acts. I’ve directed the full resources of our intel-

ligence and law enforcement communities to find those

responsible and to bring them to justice. We will make no

distinction between the terrorists who committed these

acts and those who harbor them.

I appreciate so very much the members of Congress

who have joined me in strongly condemning these attacks.

And on behalf of the American people, I thank the many

world leaders who have called to offer their condolences

and assistance.

America and our friends and allies join with all those

who want peace and security in the world, and we stand

together to win the war against terrorism. Tonight, I ask for

your prayers for all those who grieve, for the children

whose worlds have been shattered, for all whose sense of

safety and security has been threatened. And I pray they

will be comforted by a power greater than any of us, spo-

ken through the ages in Psalm 23: “Even though I walk

through the valley of the shadow of death, I fear no evil,

for You are with me.”

This is a day when all Americans from every walk of

life unite in our resolve for justice and peace. America

has stood down enemies before, and we will do so this

time. None of us will ever forget this day. Yet, we go for-

ward to defend freedom and all that is good and just in

our world.

Thank you. Good night, and God bless America.

Source:

The White House. Available on-line. URL: www.whitehouse.gov/

news/releases/2001/09/20010911-16.html. Accessed No-

vember 2003.

George W. Bush, Military Order, 2001

President George W. Bush authorized this Military Order, also

known as the Detention, Treatment, and Trial of Certain Non-

Citizens in the War against Terrorism, November 13, 2001, as

part of his ongoing war on terrorism in the aftermath of the

September 11 attacks. The order made it easier for noncitizens

who are suspected terrorists to be arrested, tried, convicted,

and punished.

Bush considered the order as protecting the United States

against possible future attacks. But critics of the order, such as

the American Civil Liberties Union, considered it as a danger-

ous assault on due process. The order allows suspected terror-

ists to be tried in military, rather than civilian, courts, in secret

proceedings that, according to Bush and Attorney General

John Ashcroft, protect against the possibility of retaliatory

attacks from other terrorists. In these military courts, only two-

thirds of the military commission members present need to

vote for conviction in order for the accused to be convicted; in

jury trials, the decision must be unanimous. In addition, sen-

tencing is based upon a two-thirds vote, meaning that the

death penalty could be imposed on a suspected terrorist with

one-third of the military commission dissenting. The convicted

could not appeal to any other court, either in the United States

or in a foreign country. The secretary of defense was given

almost full authority to expand the provisions of the order as

he saw fit. As a result of the criticism, Secretary of Defense

Donald Rumsfeld made some changes when he issued the

guidelines for using the order in 2002.

More than 1,000 people were detained under the order in

less than a month. The names of only a handful of these were

released, and not until several weeks after the initial arrests, in

response to intense media criticism after one detainee died of

heart failure while in custody. A number of detainees were

found to have no associations with terrorism and were

released, many after weeks and months incommunicado. As of

winter 2004, many still remain in custody. In addition, prison-

ers taken in Afghanistan are being held at the U.S. naval base

in Guantánamo Bay, Cuba. The United States considers them

“unlawful combatants” rather than prisoners of war, and,

therefore, they do not fall under the safeguards of the Geneva

Convention. At press time two indictments were announced

and the treatment of detainees has had mixed results in the

lower courts.

________________________

_______________________

Detention, Treatment, and Trial of Certain

Non-Citizens in the War against Terrorism

By the authority vested in me as President and as Com-

mander 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

1786 ERA 10: Contemporary United States

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:

Section 1. Findings.

(a) International terrorists, including members of al

Qaida, have carried out attacks on United States diplo-

matic 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 Depart-

ment 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 emer-

gency on September 14, 2001 (Proc. 7463, Declaration of

National Emergency by Reason of Certain Terrorist

Attacks).

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 sig-

nificant part upon using the United States Armed Forces

to identify terrorists and those who support them, to dis-

rupt their activities, and to eliminate their ability to con-

duct or support such attacks.

(e) To protect the United States and its citizens, and

for the effective conduct of military operations and pre-

vention 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 gen-

erally 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 consti-

tutes an urgent and compelling government interest, and

that issuance of this order is necessary to meet the emer-

gency.

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 prepara-

tion 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 Secre-

tary 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.

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;

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 Regard-

ing Trials of Individuals Subject to this Order.

September 11, 2001, and Aftermath 1787

(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 individ-

ual 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 com-

missions, as may be necessary to carry out subsection (a) of

this section.

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 attor-

neys, 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 opin-

ion 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 infor-

mation classified or classifiable under Executive Order

12958 of April 17, 1995, as amended, or any successor

Executive Order, protected by statute or rule from unau-

thorized 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 Sec-

retary 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 per-

son 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 Presi-

dent 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.

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 go-

vernmental 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 trans-

ferred.

Sec. 8. Publication.

This order shall be published in the Federal Register.

1788 ERA 10: Contemporary United States

GEORGE W. BUSH

THE WHITE HOUSE,

November 13, 2001.

Source:

The White House. Available on-line. URL: www.whitehouse.gov/

news/releases/2001/11/20011113-27.html. Accessed No-

vember 2003.

George W. Bush, Address to a

Joint Session of Congress and the

American People, 2001

In his September 20, 2001, speech to a joint session of Con-

gress, President George W. Bush outlined America’s response

to the September 11, 2001, terrorist attacks on the World Trade

Center and the Pentagon.

In the September 20 speech, which some consider the

finest he made, Bush accused the Taliban, Afghanistan’s

Islamic fundamentalist rulers, of “sponsoring and sheltering

and supplying” al-Qaeda, the terrorist network believed by the

United States to have orchestrated the attacks. President Bush

also demanded that the Taliban turn over all al-Qaeda leaders

to the United States and that they shut down terrorist training

camps within their borders. “Any nation that continues to har-

bor or support terrorism,” he said, “will be regarded by the

United States as a hostile regime.” In addition, Bush an-

nounced the creation of the Office of Homeland Security. This

new cabinet-level organization would coordinate all domestic

counterterrorism efforts. On several occasions in the speech,

Bush emphasized the distinction between Islam and terrorism.

Calling the terrorists “traitors to their own faith,” he pointed

out that their “pretenses to piety” masked the terrorists’ “mur-

derous” ideology.

On October 7, 2001, President Bush announced the first

American and British military strikes against Taliban military

installations and alleged al-Qaeda training camps in Afghan-

istan. The much-anticipated bomb-and-missile strikes com-

menced after a three-week diplomatic effort to build an

international coalition of support. After the 9/11 attacks, the

United States had demanded that the Taliban shut down al-

Qaeda operations and surrender its leaders to the United

States. In his address, Bush cited the Taliban’s failure to meet

these demands as the reason for the strikes. He also empha-

sized that these strikes represented only one facet of a com-

plex conflict: “today we focus on Afghanistan, but the battle is

broader.” Although the Taliban government fell and was

replaced by a coalition government, as of winter 2004, several

al-Qaeda leaders, including bin Laden, remained at large.

On October 8, 2001, almost four weeks after the attacks

on the World Trade Center and the Pentagon, President Bush

issued an executive order creating a new office devoted to the

domestic protection of the United States. Many critics ascribed

the U.S. government’s failure to anticipate the attacks to a lack

of coordination among the nation’s intelligence-gathering

agencies. Turf wars between the Central Intelligence Agency

(CIA) and the Federal Bureau of Investigation (FBI) were seen

as particularly detrimental to America’s ability to thwart ter-

rorist attacks at home. This lack of coordination, coupled with

the realization that, contrary to conventional wisdom, the

United States was vulnerable to enemy attacks on its own soil,

prompted President Bush to create the Office of Homeland

Security. According to the order, its mission, “shall be to

develop and coordinate the implementation of a comprehen-

sive national strategy to secure the United States from terrorist

threats or attacks.” Bush appointed Pennsylvania governor

Tom Ridge to lead the office, a cabinet-level position answer-

able only to the president. Many congressional and media crit-

ics argued that without secretary status and departmental

budget and authority, Ridge would command little clout

among the many agencies with homeland security responsi-

bilities. When these fears turned out to be accurate, President

Bush agreed to support the creation of a full Department of

Homeland Security. He signed the new department into law

November 25, 2002.

________________________

_______________________

Mr. Speaker, Mr. President pro tempore, Members of

Congress, and fellow Americans:

In the normal course of events, Presidents come to

this chamber to report on the state of the Union. Tonight,

no such report is needed. It has already been delivered by

the American people.

We have seen it in the courage of passengers, who

rushed terrorists to save others on the ground—passengers

like an exceptional man named Todd Beamer. Please help

me to welcome his wife, Lisa Beamer, here tonight.

We have seen the state of our Union in the endurance

of rescuers, working past exhaustion. We have seen the

unfurling of flags, the lighting of candles, the giving of

blood, the saying of prayers—in English, Hebrew, and

Arabic. We have seen the decency of a loving and giving

people, who have made the grief of strangers their own.

My fellow citizens, for the last nine days, the entire

world has seen for itself the state of our Union—and it is

strong.

Tonight we are a country awakened to danger and

called to defend freedom. Our grief has turned to anger,

and anger to resolution. Whether we bring our enemies to

justice, or bring justice to our enemies, justice will be

done.

I thank the Congress for its leadership at such an

important time. All of America was touched on the

evening of the tragedy to see Republicans and Democrats,

September 11, 2001, and Aftermath 1789

joined together on the steps of this Capitol, singing “God

Bless America.” And you did more than sing, you acted, by

delivering forty billion dollars to rebuild our communities

and meet the needs of our military.

Speaker Hastert and Minority Leader Gephardt—

Majority Leader Daschle and Senator Lott—I thank you

for your friendship and your leadership and your service to

our country.

And on behalf of the American people, I thank the

world for its outpouring of support. America will never for-

get the sounds of our National Anthem playing at Buck-

ingham Palace, and on the streets of Paris, and at Berlin’s

Brandenburg Gate. We will not forget South Korean chil-

dren gathering to pray outside our embassy in Seoul, or the

prayers of sympathy offered at a mosque in Cairo. We will

not forget moments of silence and days of mourning in

Australia and Africa and Latin America.

Nor will we forget the citizens of eighty other nations

who died with our own. Dozens of Pakistanis. More than

130 Israelis. More than 250 citizens of India. Men and

women from El Salvador, Iran, Mexico, and Japan. And

hundreds of British citizens. America has no truer friend

than Great Britain. Once again, we are joined together in

a great cause. The British Prime Minister has crossed an

ocean to show his unity of purpose with America, and

tonight we welcome Tony Blair.

On September the eleventh, enemies of freedom

committed an act of war against our country. Americans

have known wars—but for the past 136 years, they have

been wars on foreign soil, except for one Sunday in 1941.

Americans have known the casualties of war—but not at

the center of a great city on a peaceful morning. Americans

have known surprise attacks—but never before on thou-

sands of civilians. All of this was brought upon us in a sin-

gle day—and night fell on a different world, a world where

freedom itself is under attack.

Americans have many questions tonight. Americans

are asking: Who attacked our country?

The evidence we have gathered all points to a collec-

tion of loosely affiliated terrorist organizations known as al-

Qaida. They are the same murderers indicted for bombing

American embassies in Tanzania and Kenya, and responsi-

ble for the bombing of the U.S.S. Cole.

Al-Qaida is to terror what the mafia is to crime. But its

goal is not making money; its goal is remaking the world—

and imposing its radical beliefs on people everywhere.

The terrorists practice a fringe form of Islamic

extremism that has been rejected by Muslim scholars and

the vast majority of Muslim clerics—a fringe movement

that perverts the peaceful teachings of Islam. The terror-

ists’ directive commands them to kill Christians and Jews,

to kill all Americans, and make no distinctions among mil-

itary and civilians, including women and children.

This group and its leader—a person named Usama bin

Ladin—are linked to many other organizations in different

countries, including the Egyptian Islamic Jihad and the

Islamic Movement of Uzbekistan.

There are thousands of these terrorists in more than

sixty countries. They are recruited from their own nations

and neighborhoods, and brought to camps in places like

Afghanistan where they are trained in the tactics of terror.

They are sent back to their homes or sent to hide in coun-

tries around the world to plot evil and destruction.

The leadership of al-Qaida has great influence in

Afghanistan, and supports the Taliban regime in control-

ling most of that country. In Afghanistan, we see al-Qaida’s

vision for the world.

Afghanistan’s people have been brutalized—many are

starving and many have fled. Women are not allowed to

attend school. You can be jailed for owning a television.

Religion can be practiced only as their leaders dictate. A

man can be jailed in Afghanistan if his beard is not long

enough.

The United States respects the people of Afghanistan

—after all, we are currently its largest source of humani-

tarian aid—but we condemn the Taliban regime. It is not

only repressing its own people, it is threatening people

everywhere by sponsoring and sheltering and supplying

terrorists. By aiding and abetting murder, the Taliban

regime is committing murder. And tonight, the United

States of America makes the following demands on the

Taliban:

Deliver to United States authorities all the leaders of

al-Qaida who hide in your land.

Release all foreign nationals—including American cit-

izens—you have unjustly imprisoned, and protect foreign

journalists, diplomats, and aid workers in your country.

Close immediately and permanently every terrorist

training camp in Afghanistan and hand over every terror-

ist, and every person in their support structure, to appro-

priate authorities.

Give the United States full access to terrorist training

camps, so we can make sure they are no longer operating.

These demands are not open to negotiation or dis-

cussion. The Taliban must act and act immediately. They

will hand over the terrorists, or they will share in their

fate.

I also want to speak tonight directly to Muslims

throughout the world: We respect your faith. It is practiced

freely by many millions of Americans, and by millions

more in countries that America counts as friends. Its

teachings are good and peaceful, and those who commit

evil in the name of Allah blaspheme the name of Allah.

The terrorists are traitors to their own faith, trying, in

effect, to hijack Islam itself. The enemy of America is not

our many Muslim friends; it is not our many Arab friends.

1790 ERA 10: Contemporary United States

Our enemy is a radical network of terrorists, and every

government that supports them.

Our war on terror begins with al-Qaida, but it does not

end there. It will not end until every terrorist group of

global reach has been found, stopped, and defeated.

Americans are asking: Why do they hate us?

They hate what we see right here in this chamber—a

democratically elected government. Their leaders are self-

appointed. They hate our freedoms—our freedom of reli-

gion, our freedom of speech, our freedom to vote and

assemble and disagree with each other.

They want to overthrow existing governments in many

Muslim countries, such as Egypt, Saudi Arabia, and Jor-

dan. They want to drive Israel out of the Middle East.

They want to drive Christians and Jews out of vast regions

of Asia and Africa.

These terrorists kill not merely to end lives, but to dis-

rupt and end a way of life. With every atrocity, they hope

that America grows fearful, retreating from the world and

forsaking our friends. They stand against us, because we

stand in their way.

We are not deceived by their pretenses to piety. We

have seen their kind before. They are the heirs of all the

murderous ideologies of the twentieth century. By sacrific-

ing human life to serve their radical visions—by abandon-

ing every value except the will to power—they follow in

the path of fascism, and Nazism, and totalitarianism. And

they will follow that path all the way, to where it ends: in

history’s unmarked grave of discarded lies.

Americans are asking: How will we fight and win this

war?

We will direct every resource at our command—every

means of diplomacy, every tool of intelligence, every

instrument of law enforcement, every financial influence,

and every necessary weapon of war—to the disruption and

defeat of the global terror network.

This war will not be like the war against Iraq a decade

ago, with its decisive liberation of territory and its swift

conclusion. It will not look like the air war above Kosovo

two years ago, where no ground troops were used and not

a single American was lost in combat.

Our response involves far more than instant retalia-

tion and isolated strikes. Americans should not expect

one battle, but a lengthy campaign, unlike any other we

have seen. It may include dramatic strikes, visible on

television, and covert operations, secret even in success.

We will starve terrorists of funding, turn them one

against another, drive them from place to place, until

there is no refuge or rest. And we will pursue nations that

provide aid or safe haven to terrorism. Every nation, in

every region, now has a decision to make. Either you are

with us, or you are with the terrorists. From this day for-

ward, any nation that continues to harbor or support ter-

rorism will be regarded by the United States as a hostile

regime.

Our Nation has been put on notice: We are not

immune from attack. We will take defensive measures

against terrorism to protect Americans.

Today, dozens of federal departments and agencies, as

well as state and local governments, have responsibilities

affecting homeland security. These efforts must be coordi-

nated at the highest level. So tonight I announce the cre-

ation of a Cabinet-level position reporting directly to

me—the Office of Homeland Security.

These measures are essential. But the only way to

defeat terrorism as a threat to our way of life is to stop it,

eliminate it, and destroy it where it grows.

Many will be involved in this effort, from FBI agents

to intelligence operatives to the reservists we have called

to active duty. All deserve our thanks, and all have our

prayers. And tonight, a few miles from the damaged Pen-

tagon, I have a message for our military: Be ready. I have

called the armed forces to alert, and there is a reason. The

hour is coming when America will act, and you will make

us proud.

This is not, however, just America’s fight. And what is

at stake is not just America’s freedom. This is the world’s

fight. This is civilization’s fight. This is the fight of all who

believe in progress and pluralism, tolerance and freedom.

We ask every nation to join us. We will ask, and we will

need, the help of police forces, intelligence services, and

banking systems around the world. The United States is

grateful that many nations and many international organi-

zations have already responded—with sympathy and with

support. Nations from Latin America, to Asia, to Africa, to

Europe, to the Islamic world. Perhaps the NATO Charter

reflects best the attitude of the world: an attack on one is

an attack on all.

The civilized world is rallying to America’s side. They

understand that if this terror goes unpunished, their own

cities, their own citizens may be next. Terror, unanswered,

can not only bring down buildings, it can threaten the sta-

bility of legitimate governments. And we will not allow it.

Americans are asking: What is expected of us?

I ask you to live your lives and hug your children. I

know many citizens have fears tonight, and I ask you to be

calm and resolute, even in the face of a continuing threat.

I ask you to uphold the values of America, and

remember why so many have come here. We are in a fight

for our principles, and our first responsibility is to live by

them. No one should be singled out for unfair treatment or

unkind words because of their ethnic background or reli-

gious faith.

I ask you to continue to support the victims of this

tragedy with your contributions. Those who want to give

can go to a central source of information, libertyunites.org,

September 11, 2001, and Aftermath 1791