United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section D. Information on the nature and cause of the accusation
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III.
The manual also contains the provisions of Articles 71 and 123 of the 1949 Geneva Convention IV.
The US Air Force Pamphlet (1976) provides, with respect to protected persons arrested for criminal offences: “Among other rights, accused persons are assured the right to be informed promptly of the charges against them.”
The US Air Force Commander’s Handbook (1980) provides: “A prisoner must be given notice of the charges.”
The US Manual for Military Commissions (2010) states:
Arraignment shall be conducted in a military commission session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading.
The manual also states:
(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
(1) The nature of the offense to which the plea is offered and the maximum possible penalty provided by law.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
“§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“§ 948q. Charges and specifications
“(a) CHARGES AND SPECIFICATIONS.—Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state—
“(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and
“(2) that they are true in fact to the best of the signer’s knowledge and belief.
“(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges against him as soon as practicable.
The Military Commissions Act also states:
“§ 949d. Sessions
“(f) PROTECTION OF CLASSIFIED INFORMATION.—
“(1) NATIONAL SECURITY PRIVILEGE.—
“(A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.
“(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that—
(i) the information is properly classified; and
(ii) disclosure of the information would be detrimental to the national security.
“(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.
“(2) INTRODUCTION OF CLASSIFIED INFORMATION.—
“(A) ALTERNATIVES TO DISCLOSURE.—To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—
(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission;
(ii) the substitution of a portion or summary of the information for such classified documents; or
(iii) the substitution of a statement of relevant facts that the classified information would tend to prove.
“(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES.—The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.
“(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL.—During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review of trial counsel’s claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.
“(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS.—A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
“(4) ADDITIONAL REGULATIONS.—The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60 days before the date on which such regulations or modifications, as the case may be, go into effect.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
“§ 948q. Charges and specifications
“(b) NOTICE TO ACCUSED.—Upon the swearing of the charges and specifications … the accused shall be informed of the charges and specifications against the accused as soon as practicable.
The Act also states:
“§ 948s. Service of charges
“The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”