Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions and Articles 102 and 108 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 11, 178 and 184.
With respect to occupied territories, the manual uses the same wording as Articles 5, 66 and 71 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 248, 436 and § 441.
The manual provides that “wilfully depriving a prisoner of war or a protected person of the rights of a fair and regular trial” is a grave breach of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
The US Air Force Pamphlet (1976) states that the 1949 Geneva Convention III “provides specific safeguards and guarantees of fair judicial proceedings”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet further states: “Protected persons in occupied territory who are detained for … sabotage … are guaranteed the right to a fair trial.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-2.
The Pamphlet specifies that “deliberate deprivation of fair trial rights to any protected persons” is an act involving individual criminal responsibility. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(11).
The US Air Force Commander’s Handbook (1980) provides: “A prisoner of war must be tried by the same courts as try members of the armed forces of the detaining power, and must be given the same procedural rights as members of that state’s armed forces”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The Handbook adds: “Even terrorists … and illegal partisans have the right to be tried”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(e).
With respect to war crimes trials, the Handbook states that “these trials must meet certain minimum standards of fairness and due process, now set out in detail in the 1949 Geneva Conventions” and that the “failure to accord captured personnel the right to a fair trial is itself a serious violation of the law of armed conflict”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, §§ 8–3(a) and(b).
The US Soldier’s Manual (1984) prohibits sentencing protected persons without a proper trial. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, pp. 5 and 20.
The US Naval Handbook (1995) provides that “the following acts are representative war crimes … denial of a fair trial” for prisoners of war and civilian inhabitants of an occupied territory. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(1) and (2).
The Handbook adds: “Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(2) and (3).
The US Naval Handbook (2007) states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … denial of fair trial for offenses …
2. Offenses against civilian inhabitants of occupied territory, including … denial of fair trial for offenses. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(1)–(2).
The Handbook also states: “The law of armed conflict establishes minimum standards for the trial of foreign nationals charged with war crimes. Failure to provide a fair trial for the alleged commission of a war crime is itself a war crime.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.3.
The Handbook further states: “Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.1.
The Handbook further states:
[T]he following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control:
d. Passing sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2(d).
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “… the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The US Manual for Military Commissions (2010) provides that “procedural and evidentiary rules that … extend to the accused all the judicial guarantees which are recognized as indispensable by civilized peoples as required by Common Article 3 of the Geneva Conventions of 1949”. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Preamble, § 2, p. I-1.
Under the US War Crimes Act (1996), as amended in 2006, violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, as amended in 2006, Section 2441(c).
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. 
United States, Executive Order 13492, Closure of Guantánamo Detention Facilities, 2009, Sections 4(a) and 7.
In the Sawada case before the US Military Commission at Shanghai in 1946, the accused was charged with “knowingly, unlawfully and wilfully” denying the status of prisoner of war to eight members of the US forces who were “tried and sentenced by a Japanese Military Tribunal in violation of the laws of war”. The Military Commission considered that “false and fraudulent charges” and “false and fraudulent evidence” contributed to the criminal character of the trial. 
United States, Military Commission at Shanghai, Sawada case, Judgment, 15 April 1946.
In the Isayama case in 1946, the US Military Commission at Shanghai tried Lieutenant-General Harukei Isayama and other members of the Japanese Military Tribunal on charges that members of the Japanese Military Tribunal did “permit, authorize and direct an illegal, unfair, unwarranted and false trial [of prisoners of war] … upon false and fraudulent evidence and without affording said prisoners of war a fair hearing”. The Commission found that the accused had falsified the records of interrogation of 14 US airmen, that the US airmen were not afforded the opportunity to obtain evidence or to call witnesses on their own behalf, that they were not permitted to be represented by legal counsel and that they were executed in violation of international law. The Commission found Lieutenant-General Isayama and the seven other accused guilty of all counts alleged. 
United States, Military Commission at Shanghai, Isayama case, Judgment, 25 July 1946.
In its judgment in the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg held:
The trials of the accused … did not approach a semblance of fair trial or justice. The accused … were arrested and secretly transported to Germany and other countries for trial. They were held incommunicado. In many instances they were denied the right to introduce evidence, to be confronted by witnesses against them, or to present witnesses on their own behalf. They were tried secretly and denied the right of counsel of their own choice, and occasionally denied the aid of any counsel. No indictment was served in many instances and the accused learned only a few moments before the trial of the nature of the alleged crime for which he was to be tried. The entire proceedings from the beginning to end were secret and no public record was allowed to be made of them.
The Tribunal concluded that the trial was “unfair”. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
In 2008, in the Khadr case, a Guantánamo Military Commission considered a defence request that all charges and specifications be dismissed on the basis that the Military Commissions Act (2006) is a “Bill of Attainder”; described as “a legislative act which inflicts punishment without a judicial trial”. The Commission denied the defence motion, stating:
5. The defense characterization of the effect of the MCA [Military Commissions Act (2006)] on Mr. Khadr as “legislative punishment” is not supported by case law; nor by any logical interpretation of the historical reasons for the Bill of Attainder Clause.
a. The cases cited by the defense for the propositions which it asserts do not support characterization of a trial by military commission as punishment.
b. Insofar as the defense claims are based upon those portions of the MCA which regulate the access to civilian courts for purposes of habeas corpus, those portions are independent of those sections establishing the jurisdiction of and procedures for military commissions.
c. Insofar as the defense claims are based on procedures established by the MCA which differ from procedures in federal courts and military courts-martial, such variations. are not grounds for determining that punishment has been legislated before a trial. The commission notes that the Uniform Code of Military Justice has not been held to be a Bill of Attainder, even though certain provisions of military practice appear to be at variance with Constitutional requirements – compare place of trial under the Uniform Code with the 6th Amendment’s venue rule and Clause 2 of Section III.
6. Nothing in the MCA directs that any person or any subset of persons be punished without a trial. Nothing in the trial procedures established by the MCA can be properly viewed as “punishment,” as that term is used in the cases cited by the defense. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 20 February 2008, §§ 5–6.
In 1987, the deputy legal adviser of the US Department of State affirmed:
We support the principle that … no sentence be passed and penalty executed except pursuant to conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427–428.
The deputy legal adviser added:
The basic core of [the 1977 Additional] Protocol II is, of course, reflected in common article 3 of the 1949 [Geneva] Conventions and therefore is, and should be a part of generally accepted customary law. This specifically includes its prohibitions on … punishment without due process. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 430–431.
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].” 
Report on US Practice, 1997, Chapter 5.3.
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. … They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Applause.)
We’ll also seek to prosecute those believed to be responsible for the attack on the USS Cole, and an operative believed to be involved in the bombings of the American embassies in Kenya and Tanzania. With these prosecutions, we will send a clear message to those who kill Americans: No longer – how long it takes, we will find you and we will bring you to justice. (Applause.)
These men will be held in a high-security facility at Guantanamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense – and they will be presumed innocent. While at Guantanamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.
In May 2010, the US President issued the 2010 National Security Strategy, which stated: “Legal Aspects of Countering Terrorism. … When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective.” 
United States, Report by the President of the United States, 2010 National Security Strategy, The White House, Washington DC, 26 May 2010, p. 36.
The US Field Manual (1956) reproduces Article 84 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 160.
The US Air Force Pamphlet (1976) emphasizes: “In no event may [a prisoner of war] be tried by any court not offering the [generally recognized] essential guarantees of independence and impartiality.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The US Manual for Military Commissions (2007) states:
Requisites of military commission jurisdiction.
(1) Jurisdiction of military commissions generally. A military commission shall have jurisdiction to try any offense made punishable by the M.C.A. [Military Commissions Act of 2006] or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(2) Lawful enemy combatants. Military commissions under the M.C.A. shall not have jurisdiction over lawful enemy combatants.
(3) Specific requisites for military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(A) The military commission must be convened by an official empowered to convene it;
(B) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(C) Each charge before the military commission must be referred to it by a competent authority;
The accused must be a person subject to military commission jurisdiction; and The offense must be subject to military commission jurisdiction. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 201 (b), pp. II-12 and II-13.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. The military commissions may try any person when authorized to do so under the M.C.A.
(b) Determination of unlawful enemy combatant status by Combatant Status Review Tribunal or other competent tribunal dispositive. A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by a military commission under the M.C.A. The determination by the tribunal shall apply for purposes of military commission jurisdiction without regard to any pending petitions for review or other appeals. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 202(a) and (b), p. II-13.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 902(a) and (b)(1), p. II-80.
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “… the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(d) the passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The US Manual for Military Commissions (2010) states:
Jurisdiction in general
(b) Requisites of military commission jurisdiction. A military commission always has jurisdiction to determine whether it has jurisdiction. Otherwise for a military commission to have jurisdiction:
(1) The military commission must be convened by an official empowered to convene it;
(2) The military commission must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here “personnel” includes only the military judge and the members;
(3) Each charge before the military commission must be referred to it by a competent authority;
(4) The accused must be a person subject to military commission jurisdiction; and
(5) The offense must be subject to military commission jurisdiction. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 201(b), p. II-14.
The manual also states:
Persons subject to the jurisdiction of the military commissions
(a) In general. Any alien unprivileged enemy belligerent is subject to trial by military commission under chapter 47A of title 10, United States Code.
(b) Privileged belligerents. Military commissions under chapter 47A of title 10, United States Code, shall not have jurisdiction over privileged belligerents.
(c) Competent Tribunal. A military commission is a competent tribunal to make a finding sufficient for jurisdiction. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 202, p. II-15.
The manual further states:
Disqualification of military judge
(a) In general. Except as provided in section (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 902(a) and (b)(1), p. II-86.
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.
(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.— A military commission established under this chapter is a regularly constituted court, affording all the necessary “judicial guarantees which are recognized as indispensable by civilized peoples” for purposes of common Article 3 of the Geneva Conventions.
(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights. 
United States, Military Dictatorship, 2007, Article 2(1). Spain, Law on the Victims of the Civil War and the Dictatorship Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a), (f) and (g).
The Military Commissions Act further states:
§ 948d. Jurisdiction of military commissions
(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
(b) LAWFUL ENEMY COMBATANTS.—Military commissions under this chapter shall not have jurisdiction over lawful enemy combat ants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.—A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
(d) PUNISHMENTS.—A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2603, § 948d.
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base in Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions:
[T]there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention.” Id., at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Ibid.
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F.3d at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U.S.T., at 3318 (Art. 2, P 1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, P 3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII [1949 Geneva Convention III] Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36. In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43.
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” 6 U.S.T., at 3320 (Art. 3, P 1(d)). While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV [1949 Geneva Convention IV] Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”); see also Yamashita, 327 U.S., at 44, 66 S. Ct. 340, 90 L. Ed. 499 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”). 
United States, Supreme Court, Hamdan case, Judgment, Part VI D, 29 June 2006.
Omar Khadr, a Canadian citizen born on 19 September 1986, had been captured in Afghanistan in July 2002 and detained at the US naval base in Guantanamo Bay, Cuba, since October 2002. In September 2007, the Khadr case (US Court of Military Commission Review) resulted from an appeal by the Government after the military judge presiding over Khadr’s military commission trial had dismissed all charges against him without prejudice – a ruling based upon the judge’s determination that the military commission lacked personal jurisdiction over Khadr. The basis for that ruling had been the Appellant’s failure to properly determine Khadr’s status as an “alien unlawful enemy combatant” before his Combatant Status Review Tribunal (CSRT). The judge ruled that this was an indispensable prerequisite to the military commission’s ability to exercise personal jurisdiction under the Military Commissions Act 2006 (MCA), further stating that “the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr”.
In a judgment that affirmed the military judge’s conclusion that Khadr’s CSRT classification in 2004 as an “enemy combatant” was insufficient to establish the military commission’s criminal jurisdiction over him but reversed the military commission’s ruling that it lacked authority to hear evidence on, and ultimately decide, the matter of Khadr’s “unlawful enemy combatant status”, the Court stated:
[T]he 2002 White House memorandum [“Humane Treatment of Al Qaeda and Taliban Detainees”, signed by President G.W. Bush, 7 February 2002] concluded that Common Article 3 of the Geneva Conventions “does not apply to either al Qaeda or Taliban detainees.” Id. at ¶ 2c. The Supreme Court subsequently determined that legal conclusion was erroneous. See Hamdan, 126 S.Ct. at 2795–96, 165 L. Ed. 2d 776–78. Congress, clearly aware of the Hamdan decision when it drafted the M.C.A., appears to have embraced the minimal safeguards guaranteed by Common Article 3 requiring that even “unlawful enemy combatants” be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” See § 948b(f), M.C.A. (quoting Common Article 3 – “A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions”); see also Art. III, GPW III, ¶ 1(d). No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions. The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum [Deputy Secretary for Defense, Memorandum for the Secretary of the Navy, “Order Establishing Combatant Status Review Tribunal”, 7 July 2004], could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant”. 
United States, Court of Military Commission Review, Khadr case, Judgment, 24 September 2007.
Country reports on human rights practices issued by the US Department of State in 1983 and 1996 stress that the right to be tried by a trained, impartial and independent judge may not be suspended, even during an emergency situation. 
United States, Department of State, Country reports on human rights practices for 1983, Nicaragua, United States Government Printing Office, Washington, D.C., 1984, p. 637; Country reports on human rights practices for 1996, Cambodia, United States Government Printing Office, Washington, D.C., 1997, p. 611.
In 1987, the deputy legal adviser of the US Department of State affirmed: “We support the principle that … no sentence be passed and penalty executed except pursuant to conviction pronounced by an impartial and regularly constituted court”. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427–428.
The Report on US Practice states that “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].” 
Report on US Practice, 1997, Chapter 5.3.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s legal adviser stated: “As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war”. 
United States, “The Obama Administration and International Law”, Speech given by the legal adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 26 March 2007 hearing, the military judge stated:
It is also standard practice that an accused will not appear for a trial session wearing prison garb. That would refer to jumpsuits or scrubs or things of that nature.
These rules, as I would expect counsel probably know, are designed to protect the presumption of innocence on the part of the accused. The rule with regard to not appearing in prison attire is for the protection of the accused such that the court or commissioned members or a jury depending on what jurisdiction you are in, the people that are making findings with regard to guilt or innocence, would not be inferring anything adverse on the part of the accused based on them wearing some sort of prison or jail clothing. So again, this rule of court is there to buttress the presumption of innocence that an accused is afforded in these proceedings. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
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].” 
Report on US Practice, 1997, Chapter 5.3.
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172 and 181.
The manual also contains the provisions of Articles 71 and 123 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 330 and 441.
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.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
The US Air Force Commander’s Handbook (1980) provides: “A prisoner must be given notice of the charges.” 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The US Manual for Military Commissions (2010) states:
Arraignment
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. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 904, p. II-88.
The manual also states:
Pleas
(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. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910 (c)(1), p. II-101.
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. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2606, 2607, §§ 948b(a) and 948q.
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. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2612–2613, § 949d(f).
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. 
United States, Military Commissions Act, 2009, § 948q(b).
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. 
United States, Military Commissions Act, 2009, § 948s.
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].” 
Report on US Practice, 1997, Chapter 5.3.
The US Field Manual (1956) reproduces Articles 96, 99 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172, 175 and 181.
The manual also restates Articles 71 and 72 of the 1949 Geneva Convention IV, concerning situations of occupation, and Article 123 of the 1949 Geneva Convention IV, regarding disciplinary punishment. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 441, 442 and 330.
The US Air Force Pamphlet (1976) provides: “In no event may [a prisoner of war] be tried … under procedure which fails to accord the rights of defense set forth in Article 105 [of the 1949 Geneva Convention III].” It adds that Article 105 of the 1949 Geneva Convention III “gives [the accused] the right to counsel of his choice” and that the prisoner of war’s “counsel will have the opportunity to prepare an adequate defense”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The manual also states: “Among other rights, accused persons are assured the right to … obtain defense counsel”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
The US Air Force Commander’s Handbook (1980) states that prisoners must “be allowed the help of a lawyer”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The US Naval Handbook (1995) provides: “At a minimum, [procedural] rights must include the assistance of lawyer counsel.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.7.1.
The US Manual for Military Commissions (2007) states:
Counsel in a military commission. Military trial and defense counsel shall be detailed to military commissions by the Chief Prosecutor and Chief Defense Counsel, respectively. Assistant trial and associate or assistant defense counsel may also be detailed. Civilian trial counsel may be detailed by the Chief Prosecutor, with the approval of the convening authority and, if such counsel are employed by another government agency, with the approval of the head of that agency. Should an accused, pursuant to his request, be deemed competent to represent himself, detailed defense counsel shall serve as standby counsel. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 501(b), p. II-19.
The US Naval Handbook (2007) states:
Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights. At a minimum, these rights must include the assistance of lawyer counsel. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.1.
The US Manual for Military Commissions (2010) states:
Composition and personnel of military commission
(b) Counsel in a Military Commission. Military trial and defense counsel shall be detailed to military commissions by the Chief Prosecutor and Chief Defense Counsel, respectively. Assistant trial and associate or assistant defense counsel may also be detailed. Civilian trial counsel may be detailed by the Chief Prosecutor, with the approval of the convening authority and, if such counsel are employed by another government agency, with the approval of the head of that agency. Should an accused, pursuant to his request, be deemed competent to represent himself, detailed defense counsel shall serve as standby counsel. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 501(b), p. II-22.
The manual also states:
Accused’s rights to counsel
(a) In general. The accused has the right to be represented before a military commission by civilian counsel if provided at no expense to the Government, by military counsel detailed under R.M.C. [Rules for Military Commissions] 503, or by military counsel of the accused’s own selection, if reasonably available. Except as otherwise provided by section (b) of this rule, the accused is not entitled to be represented by more than one military counsel …
(b) Capital Offenses. In any case in which the trial counsel makes a recommendation to the convening authority pursuant to R.M.C. 307(d) that a charge be referred to a capital military commission, or in which the convening authority refers a charge to a capital military commission, the accused has the right to be represented in accordance with section (a) above, and by at least one additional counsel who is learned in applicable law relating to capital cases. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 506(a) and (b), p. II-32.
The manual further states:
Pleas
(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:
(2) If the accused is not represented by counsel, that the accused has the right to be represented by counsel at every stage of the proceedings. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(2), pp. II-101 and II-102.
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.
“…
§ 949a. Rules
“(a) PROCEDURES AND RULES OF EVIDENCE.—Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with this chapter.
“(b) RULES FOR MILITARY COMMISSION.—
“(1) Notwithstanding any departures from the law and the rules of evidence in trial by general courts-martial authorized by subsection (a), the procedures and rules of evidence in trials by military commission under this chapter shall include the following:
“(A) The accused shall be permitted to present evidence in his defense, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing, as provided for by this chapter.
“(B) The accused shall be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title.
“(C) The accused shall receive the assistance of counsel as provided for by section 948k.
“(D) The accused shall be permitted to represent himself, as provided for by paragraph (3).
“(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions:
“(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.
“(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.
“(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
“(D) Evidence shall be admitted as authentic so long as—
(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and
(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.
“(E)(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.
(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.
“(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed—
(i) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or
(ii) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
“(3)(A) The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (1)(D) shall conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission.
“(B) Failure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under paragraph (1)(D). In such case, the detailed defense counsel of the accused or an appropriately authorized civilian counsel shall perform the functions necessary for the defense. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2608 and 2609, §§ 948b(a) and-949a(a) and (b).
The Military Commissions Act further states:
§ 949c. Duties of trial counsel and defense counsel
“ …
“(b) DEFENSE COUNSEL.—
“(1) The accused shall be represented in his defense before a military commission under this chapter as provided in this subsection.
“(2) The accused shall be represented by military counsel detailed under section 948k of this title.
“(3) The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel—
“(A) is a United States citizen;
“(B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
“(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
“(D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
“(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
“(4) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information and may not divulge such information to any person not authorized to receive it.
“(5) If the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel.
“(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in that person’s sole discretion, may detail additional military counsel to represent the accused.
“(7) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2610-2611, §§ 948b(a) and 948q.
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 (MCA) and the Manual for Military Commissions (MMC), states:
Every accused shall have a qualified military defense counsel detailed to the accused at government expense during every stage of the proceedings. Should the military judge approve the request of an accused to represent himself, detailed military defense counsel shall serve as standby counsel. Should the accused retain civilian counsel, a military defense counsel shall remain detailed to the accused.
Pursuant to 10 U.S.C. § 949c(b) and R.M.C. 502(d)(1), the accused may retain the services of a civilian attorney of the accused’s own choosing and at no expense to the United States Government. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 9-1, p. 36 and § 9-5.a.1, p. 40.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“(A) To present evidence in the accused’s defense …
“ …
“(C)(i) When none of the charges preferred against the accused are capital, to be represented before a military commission by civilian counsel if provided at no expense to the Government, and by either the defense counsel detailed or the military counsel of the accused’s own selection, if reasonably available.
(ii) When any of the charges preferred against the accused are capital, to be represented before a military commission in accordance with clause (i) and, to the greatest extent practicable, by at least one additional counsel who is learned in applicable law relating to capital cases and who, if necessary, may be a civilian and compensated in accordance with regulations prescribed by the Secretary of Defense. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(A) and (C).
The Act also states:
§ 949c. Duties of trial counsel and defense counsel
“ …
“(b) DEFENSE COUNSEL.—(1) The accused shall be represented in the accused’s defense before a military commission under this chapter as provided in this subsection.
“(2) The accused may be represented by military counsel detailed under section 948k of this title or by military counsel of the accused’s own selection, if reasonably available.
“(3) The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel—
“(A) is a United States citizen;
“(B) is admitted to the practice of law in a State, district, or possession of the United States, or before a Federal court;
“(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
“(D) has been determined to be eligible for access to information classified at the level Secret or higher; and
“(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
“(4) If the accused is represented by civilian counsel, military counsel shall act as associate counsel.
“(5) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person’s sole discretion, may detail additional military counsel to represent the accused.
“(6) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter.
“(7) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information, and may not divulge such information to any person not authorized to receive it. 
United States, Military Commissions Act, 2009, § 949c(b).
The Act further states:
§ 949j. Opportunity to obtain witnesses and other evidence
“(a) IN GENERAL.—(1) Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution. 
United States, Military Commissions Act, 2009, § 949j(a)(1).
In its judgment in the Ward case in 1942, the US Supreme Court stated:
This Court has set aside convictions based upon confessions extorted from ignorant persons … who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. Any one of these grounds would be sufficient cause for reversal. 
United States, Supreme Court, Ward case, Judgment, 1 June 1942.
Country reports on human rights practices issued by the US Department of State have often noted that defendants must be given an opportunity to present their defence. More specifically, in 1986, the Department of State expressed concern that several indicted political prisoners in Ethiopia had been denied the right to present a defence, to call witnesses or to search for further evidence. 
United States, Department of State, Country reports on human rights practices for 1986, Ethiopia, United States Government Printing Office, 1987, p. 144; see also Country reports on human rights practices for 1993, Nicaragua, United States Government Printing Office, 1994, p. 637; Country reports on human rights practices for 1996, Cambodia, United States Government Printing Office, 1997, p. 611.
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].”  
Report on US Practice, 1997, Chapter 5.3.
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group Report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees held at the Guantanamo Bay Naval Base in Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
[U]nder the laws and customs of war, detained enemy combatants have no right of access to counsel or the courts to challenge their detention. Should a detainee be charged with a criminal offense, he would have the right to counsel and applicable fundamental procedural safeguards. 
United States, State Department, Response to UNCHR Opinion No. 5/2003 of 8 May 2003 and the Communication of 8 January 2003 of the Working Group on Arbitrary Detention, August 2003.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s Legal Adviser stated:
As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war. In 2009, with significant input from this Administration, the Military Commissions Act was amended, with important changes to address the defects in the previous Military Commissions Act of 2006 … . The 2009 legislative reforms … require the government to disclose more potentially exculpatory information, restrict hearsay evidence … . 
United States, “The Obama Administration and International Law”, Speech given by the Legal Adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
The US Field Manual (1956) reproduces Article 103 of the 1949 Geneva Convention III and Article 71 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 179 and 441.
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.
“(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.—The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.
“(c) CONSTRUCTION OF PROVISIONS.—The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.
“(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—
“(1) The following provisions of this title shall not apply to trial by military commission under this chapter:
“(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a)–(d)(A).
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172 and 181.
The manual also uses the same wording as Article 123 of the 1949 Geneva Convention IV regarding disciplinary punishments and Article 72 of the 1949 Geneva Convention IV concerning situations of occupation. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 330 and 441.
The US Air Force Pamphlet (1976) provides that Article 105 of the 1949 Geneva Convention III “gives the right to [the prisoner of war] … to the calling of witnesses”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet also states: “Among other rights, accused persons are assured the right to … call witnesses”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
The US Air Force Commander’s Handbook (1980) states that in case of trial, prisoners must “be allowed to call witnesses for the defense”. 
United States Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The US Manual for Military Commissions (2007) states:
Calling and interrogation of witnesses by the military commission
(a) Calling by the military commission. The military judge may, sua sponte, or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When the members wish to call or recall a witness, the military judge shall determine, after hearing the position of the parties on the question, whether it is appropriate to do so under these rules or this Manual. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 614(a), p. III-46.
The US Manual for Military Commissions (2010) states:
Pleas
(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:
(3) That the accused has the right … to confront and cross-examine witnesses who testify against the accused. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(3), pp. II-101 and II-102.
The manual also states:
Production of statements of witnesses
(a) Motion for production. After a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is:
(1) In the case of a witness called by the trial counsel, known to trial counsel or, in the exercise of due diligence, may become known to trial counsel; or
(2) In the case of a witness called by the defense, in the possession of the accused or defense counsel. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 914, p. II-110.
The manual further states:
Calling and interrogation of witnesses by the military commission
(a) Calling by the military commission. The military judge may, sua sponte, or at the request of the members or the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When the members wish to call or recall a witness, the military judge shall determine, after hearing the position of the parties on the question, whether it is appropriate to do so under these rules or this Manual. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 614(a), p. III-50.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“(A) To … cross-examine the witnesses who testify against the accused, and to examine and respond to all evidence admitted against the accused on the issue of guilt or innocence and for sentencing, as provided for by this chapter. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(A).
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to the right of an accused person to be privy to the evidence against him, the Court stated:
The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts and courts-martial. See §§5(A)–(P). These rights are subject, however, to one glaring condition: The accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the Appointing Authority or the presiding officer decides to “close.” Grounds for such closure “include the protection of information classified or classifiable …; information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.” §6(B)(3).
Hamdan raises both general and particular objections to the procedures set forth in Commission Order No. 1. His general objection is that the procedures’ admitted deviation from those governing courts-martial itself renders the commission illegal. Chief among his particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings.
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment under-estimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b) [of the UCMJ]. 
United States, Supreme Court, Hamdan case, Judgment, Part VI, A, B, and C, 29 June 2006.
In March 2008, in the Hamdan case, a Guantánamo Military Commission considered a government motion that it reconsider a previous ruling that Defence be granted access via written questions to certain High Value Detainees deemed to be potential Defence witnesses. That ruling had ordered the government to permit Defence to submit written questions, passed through a government security officer and linguist, so as to allow for Defence’s questions and the detainees’ answers to be reviewed for classified material without disclosing the exchange to the Prosecution. The Commission denied the government’s Motion for Reconsideration, but stated in clarification of the procedure to be followed for the examination of witnesses:
1. The Government Security Officer may forward the questions, after his and the Linguist’s review, to other Government Security Officers and authorities in Guantanamo Bay, or to other JTF [Joint Task Force Guantánamo] officers or representatives there who are not aligned with, and who will not communicate with the Prosecution, for delivery to and recovery from the witnesses.
2. The Government may propose additional security measures it considers necessary to protect classified information from disclosure.
3. If the Government Security Officer has procedural questions about implementation of this Order, he shall pose them to the military judge via email to the MCTJ [Military Commission Trial Judiciary] Staff, copy to the parties. The military judge will entertain comments from the parties before giving direction to the Security Officer.
4. If the Security Officer suspects that a detainee is attempting, through his written answer to a question, to communicate some message to a colleague or a confederate, he may delete the detainee’s reply to that question entirely, excise the questionable part, or summarize the answer in terms that do not contain any suspect information. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 14 March 2008, pp. 3–4.
In April 2008, in the Hamdan case, a Guantánamo Military Commission considered a Defence motion to compel production of the names and contact information of all government agents involved in the investigation of the case. In granting the motion, in situations when the identities of government officers are not subject to National Security considerations, the Commission stated:
While the motion seeks “the names and contact information of all government investigators who conducted investigations in this case,” there is a specific dispute about the names and contact information of all three officials [Witnesses A, B and C] who appeared in a “capture video” made on 21 November 2001, the day of Hamdan’s capture.
RMC [Rules for Military Commissions] 701(j) provides that “Each party shall have adequate opportunity to prepare its case and no party may unreasonably impede the access of another party to a witness or evidence.” …
The relevant rule here is RMC 701(j), which allows both parties an “adequate opportunity” to prepare their cases. The Defense asserts that “interviews of the requested witnesses may reveal a basis for suppression of the video-taped interrogation of Mr. Hamdan,” but has offered no evidence that such a basis exists. The Government has identified a National Security interest in not identifying Witness C, and has generally objected to identifying Witness B on the grounds that he will only provide cumulative evidence. The Defense has already cross-examined Major Smith, whose forces apprehended Mr. Hamdan, and who was responsible for his care and protection during this period, and has finally been given access to Witness A, who conducted and was primarily responsible for the interview. …
The Government has asserted a National Security interest in protecting the identity of Witness C, and the Commission accepts this claim. The Government’s general assertion that an interview of Witness B would place an undue burden on the government and risk damage to national security is merely an assertion by counsel. …
The Motion is DENIED as it pertains to Witness C, and GRANTED as it pertains to Witness B, subject to the conditions described above.
With respect to other government officers who participated in the various interrogations of the accused, and whose identities are not subject to National Security considerations, the motion is GRANTED. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 21 April 2008, pp. 1–2.
David Hicks, an Australian citizen, was captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba. In March 2007, in the Hicks case, the accused became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
The US Field Manual (1956) reproduces Articles 96 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172 and 181.
The manual also uses the same wording as Articles 72 and 123 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 442 and 330.
The US Air Force Pamphlet (1976) provides that Article 105 of the 1949 Geneva Convention III “gives [the prisoner of war] the right to … the services of a competent interpreter”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet also states: “Among other rights, accused persons are assured the right to … obtain an interpreter”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
The US Air Force Commander’s Handbook (1980) states that prisoners must be allowed “the help of … an interpreter” in case of trial. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
The US Naval Handbook (1995) states: “At a minimum, [procedural] rights must include the assistance of … an interpreter”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.7.1.
The US Manual for Military Commissions (2007) states:
Interpreters. The convening authority may detail or employ for the military commission interpreters who shall interpret for the commission and as necessary, for the trial counsel, defense counsel, and the accused. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 501(d), p. II-19.
The US Naval Handbook (2007) states:
Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights. At a minimum, these rights must include the assistance of … an interpreter. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.1.
The US Manual for Military Commissions (2010) states:
Composition and personnel of military commission
(d) Interpreters. The convening authority may detail or employ for the military commission interpreters. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 501(d), p. II-22.
The manual also states:
Qualifications and duties of personnel of military commissions
(e) Interpreters, reporters, escorts, bailiffs, clerks, and guards.
(3) Duties
(A) Interpreters. Interpreters shall interpret for the commission and as necessary, for the trial counsel and defense counsel and for the accused. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 502(e)(3)(A), p. II-28.
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 (MCA) and the Manual for Military Commissions (MMC), states:
In each case before a military commission and in each instance of the taking of a deposition, the convening authority or the officer directing such proceeding shall appoint, when necessary, an interpreter for the commission or officer taking the deposition. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 7-3.a, p. 30.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 948l. Detail or employment of reporters and interpreters
“ …
“(b) INTERPRETERS.—Under such regulations as the Secretary of Defense may prescribe, the convening authority of a military commission under this chapter may detail to or employ for the military commission interpreters who shall interpret for the military commission, and, as necessary, for trial counsel and defense counsel for the military commission, and for the accused. 
United States, Military Commissions Act, 2009, § 948l(b).
The US Manual for Military Commissions (2007) states:
Presence of the accused at trial proceedings
(a) Presence required. The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted without members (except for certain in camera and ex parte presentations as may be permitted under R.M.C. 701-703 and Mil. Comm. R. Evid. 505), voir dire and challenges of members, the announcement of findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule.
(b) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, after being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom. Prior to exclusion of the accused under this section, the military judge shall consider and may, in his sole discretion, implement alternative measures to preserve the decorum of the proceedings and protect the parties and spectators to the trial. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 804(a) and (b), pp. II-65 and II-66.
The US Manual for Military Commissions (2010) states:
Presence of the accused
(a) Presence required. Except for certain in camera and ex parte presentations as may be permitted … , the accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted without members, voir dire and challenges of members, the announcement of findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule.
(b) Exclusion of accused from certain proceedings. The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom:
(1) to ensure the physical safety of individuals; or
(2) to prevent disruption of the proceedings by the accused.
(c) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused:
(1) is voluntarily absent after arraignment; or
(2) after being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
An accused who is in military custody or otherwise subject to military control at the time of trial or other proceeding may not properly be absent from the trial or proceeding without securing the permission of the military judge on the record. Prior to exclusion of the accused under this section, the military judge shall consider and may, in the military judge’s sole discretion, implement alternative measures to preserve the decorum of the proceedings and protect the parties and spectators to the trial. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 804, p. II-70.
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.
“…
§ 949d. Sessions
“…
“(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—Except as provided in subsections (c) and (e), all proceedings of a military commission under this chapter, including any consultation of the members with the military judge or counsel, shall—
“(1) be in the presence of the accused, defense counsel, and trial counsel; and
“(2) be made a part of the record.
“(c) DELIBERATION OR VOTE OF MEMBERS.—When the members of a military commission under this chapter deliberate or vote, only the members may be present.
“ …
“(e) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
“(1) to ensure the physical safety of individuals; or
“(2) to prevent disruption of the proceedings by the accused. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2611 and 2612, §§ 948b(a) and 949d(b), (c) and (e).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“ …
“(B) To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(B).
The Act also states:
§ 949d. Sessions
“ …
“(d) EXCLUSION OF ACCUSED FROM CERTAIN PROCEEDINGS.—The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
“(1) to ensure the physical safety of individuals; or
“(2) to prevent disruption of the proceedings by the accused. 
United States, Military Commissions Act, 2009, § 949d(d).
The Hamdan case in 2006 involved a Yemeni national in custody at the Guantanamo Bay Naval Base, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the US Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to the matter of the “presence of the accused at the trial”, the Court stated:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U.S.C. A. ß 839(c) (Supp. 2006). Whether or not that departure technically is “contrary to or inconsistent with” the terms of the UCMJ, 10 U.S.C. ß 836(a), the jettisoning of so basic a right cannot lightly be excused as “practicable.”
Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b) [of the UCMJ]. 
United States, Supreme Court, Hamdan case, Judgment, Part VI C, 29 June 2006.
The Report on US Practice states: “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].” 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].” 
Report on US Practice, 1997, Chapter 5.3.
The US Field Manual (1956) reproduces Article 99 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 175.
The US Manual for Military Commissions (2007) states:
Privilege concerning compulsory self-incrimination
(a) General rule. No person shall be required to testify against himself at a proceeding of a military commission under these rules. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31, to the extent that either may be invoked in proceedings before military commissions, are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 301(a), p. III-5.
The manual further states:
Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.
(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 304(a) and (c), pp. III-8 and III-9.
The US Manual for Military Commissions (2010) states:
Pleas
(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:
(3) That the accused has the right … against self-incrimination
(d) Ensuring that the plea is voluntary. The military judge shall not accept a plea of guilty without first, by addressing the accused personally, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(3) and (d), pp. II-101 and II-102.
The manual also states:
Privilege concerning compulsory self-incrimination
(a) General rule. No person shall be required to testify against himself at a proceeding of a military commission under these rules. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31, to the extent that either may be invoked in proceedings before military commissions, are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 301(a), p. III-5.
The manual further states:
Confessions, admissions, and other statements
(a) General Rules
(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 304(a)(1), p. III-7.
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.
“(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.—The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.
“(c) CONSTRUCTION OF PROVISIONS.—The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided in this chapter. The judicial construction and application of that chapter are not binding on military commissions established under this chapter.
“(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—
“(1) The following provisions of this title shall not apply to trial by military commission under this chapter:
“ …
“(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2602, § 948b(a)–(d)(B).
The Military Commissions Act further states:
§ 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements
“(a) IN GENERAL.—No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
“(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.
“(c) STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—
“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
“(2) the interests of justice would best be served by admission of the statement into evidence.
“(d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—
“(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
“(2) the interests of justice would best be served by admission of the statement into evidence; and
“(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2607, § 948r.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused
“(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT.—No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.
“(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter. 
United States, Military Commissions Act, 2009, § 948r(a)–(b).
In its judgment in the Ward case in 1942, the US Supreme Court stated:
This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subjected to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely or isolated places for questioning. Any one of these grounds would be sufficient cause for reversal … The use of a confession obtained under such circumstances is a denial of due process. 
United States, Supreme Court, Ward case, Judgment, 1 June 1942.
In 2005, in the In re Guantanamo Detainee cases, involving 11 coordinated habeas corpus civil actions brought against the US Government by various detainees being held at the US Naval Base at Guantanamo Bay, Cuba, the Court found that “CSRT [Combatant Status Review Tribunal] procedures are unconstitutional for failing to comport with the requirements of due process”. Specifically regarding the CSRT’s reliance on statements possibly obtained through torture or other coercion, the Court stated:
The first of these specific grounds involves the CSRT’s reliance on statements allegedly obtained through torture or otherwise alleged to have been provided by some detainees involuntarily. The Supreme Court has long held that due process prohibits the government’s use of involuntary statements obtained through torture or other mistreatment. 
United States, District Court for the District of Columbia, In re Guantanamo Detainee cases, Judgment, 31 January 2005.
In the Hicks case in March 2007, the accused, an Australian citizen who had been captured in Afghanistan in December 2001 and afterwards detained at Guantanamo Bay Naval Base, Cuba, became the first person to be tried and convicted under the US Military Commissions Act of 2006. Following a pre-trial agreement struck with the Convening Authority, the accused pleaded guilty to the charge of “providing material support for terrorism”. In April 2007, Hicks returned to Australia to serve the remaining nine months of a suspended seven-year sentence. In the case’s record of trial for the 30 March 2007 hearing, the military judge stated to the accused:
By your plea of guilty you waive, or in other words, you give up certain important rights. The rights you give up are:
First, the right against self-incrimination, that is, the right that you have to say nothing at all about this offense.
Second, the right to a trial of the facts by the commission, that is, the right to have this commission decide whether or not you are guilty based on the evidence presented by the prosecution and, if you chose to do so, by the defense.
Third, the right to confront the witnesses against you, and to call witnesses on your behalf. 
United States, Office of Military Commissions, Hicks case, Record of Trial, 26 and 30 March 2007.
In July 2008, in the Hamdan case, a Guantánamo Military Commission considered a Defence motion to suppress statements based on coercive interrogation practices, as well as a Defence motion to suppress statements based on the US Constitution’s Fifth Amendment right against self-incrimination. In partially granting the first of those motions, the Commission blocked the use as evidence of some statements that [the accused] had provided interrogators while he was a captive in Afghanistan, because they had been obtained under “highly coercive” conditions. The Commission declined, however, to suppress admissions made by [the accused] after he arrived at Guantánamo and ruled that the Fifth Amendment right does not apply. On the motion to suppress statements based on coercive interrogation practices, the Commission stated:
1. The motion to suppress is denied as it pertains to the capture videos. [The accused was captured in Afghanistan on 24 November 2001. Shortly afterwards, the accused was interrogated at least twice by US forces and the interrogations videotaped. These two “capture videos” were the first two subjects of the Defence motion to suppress]. The totality of the circumstances renders these statements reliable and possessing sufficient probative value. … The interests of justice will best be served by the admission of the statements into evidence. …
2. The Motion is granted as to any statement for which the Government does not produce an official involved in the taking of the statement, who can authenticate the statement, describe the conditions under which it was made, and submit to cross examination. …
3. The motion is granted as to statements of the accused made in Panshir and Bagram [in Afghanistan]. The interests of justice are not served by admitting these statements because of the highly coercive environments and conditions under which they were made. …
4. To the extent the motion raises issues of coercion after [the accused] arrived in Guantanamo, these are resolved against the accused. While [the accused] was exposed to a variety of coercive influences over the past seven years, some of these were rationally related to good order and discipline in the camp, some were imposed as a result of his own misconduct as disciplinary measures, and others were likely imposed to encourage his cooperation with camp rules and procedures generally. … The Commission is convinced, by a preponderance of the evidence, that no coercive techniques influenced the making of any of the accused’s statements in Kandahar or Guantanamo Bay. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 20 July 2008, p. 15.
On the motion to provide the US Constitution’s Fifth Amendment rights against self-incrimination, the Commission stated:
1. The citizenship and status of the detainee, and the adequacy of the process through which the determination was made:
[The accused] is a citizen of Yemen, and has been determined to be an alien unlawful enemy combatant. The determination was made after a public, two-day, adversarial hearing at which he was represented by counsel, called his own witnesses and cross-examined the government’s witnesses. The decision was made by a military judge, who considered not only the M.C.A’s [Military Commissions Act of 2006] statutory definition of unlawful enemy combatant, but considered and evaluated his claims under the Geneva Convention in an Article 5 status hearing, held over Government objection. This factor weighs against extraterritoriality.
2. The site of his apprehension and detention:
The apprehension occurred in Afghanistan, and the sites of his detention have been in Afghanistan and Guantanamo Bay. The Supreme Court has held that Guantanamo Bay is under the de jure sovereignty of Cuba, and the de facto control of the United States. As the Court indicated in Boumediene [553 US 723 (2008)], “detainees here are similarly situated to the Eisentrager [339 US 763 (1950] petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding that they have rights under the [Constitution].” Boumediene, at 38.
3. Practical [c]onsiderations and exigent circumstances
… A guarantee of the 5th Amendment’s right against self-incrimination to every detainee from the moment of his capture would entirely prevent the United States from seeking intelligence about the location, plans, capabilities and intentions of other lawful and unlawful combatants then in the field, and other attacks planned against the United States, its allies, or even unaligned nations, and would hamstring American military and intelligence officials in the performance of important national security duties. The practical effect of such a prohibition would be devastating to our ability to effectively confront and respond to international terrorism. …
[4]. Adequacy of the alternative right provided:
The alternative right provided by Congress is a right to remain silent at the proceedings themselves. While the 5th Amendment applies “in any criminal case,” Military Commissions Act (2006)] §948r provides only that “No person shall be required to testify against himself at a proceeding of a military commission under this chapter.”
Fifth Amendment jurisprudence under the Constitution now requires someone in the custody of law enforcement officials to be warned of their rights to remain silent before they are interrogated, and presumes that statements made without such warnings are involuntarily made. …
In a military commission trial, Congress has expressly and consciously denied unlawful enemy combatants a right to be warned that their statements may be used against them, and the right to have such unwarned statements suppressed … [For] Statements made where the “degree of coercion inherent in the production of a statement offered by either party is disputed – such statement may only be admitted” if the military judge determines, after a hearing, that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would best be served by admission of the statement into evidence. …
The alternative remedy Congress has provided for application in military commissions is significantly less protective of the accused than the 5th Amendment. But the same can be said of the [1949] Geneva Conventions themselves: the protections of Common Article 3 (for those not entitled to Prisoner of War Status), are minimal compared to the exhaustive and extensive protections and rights accorded to Prisoners of War in Articles 12 through 125 of the Third Geneva Convention. The right afforded defendants before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is a right “not to be compelled to testify against himself or to confess guilt.” … These standards are comparable to the protection afforded by Congress before a military commission.
This factor weighs against application of the Amendment.
[5]. Necessity for the 5th Amendment to prevent injustice:
Congress has an express delegation of Constitutional authority to “define and punish” offenses against the law of nations. This power must include power to establish tribunals, modes of proof and other standards and procedures that satisfy the minimal standards established for Unlawful combatants in Common Article 3. In this specialized area where Congress must weigh national interests with our obligations under the law of nations, the Commission can not readily conclude that a decision Congress has made under this special mantle of authority must be overturned “to prevent injustice.” The right Congress has provided to unlawful combatants in the Military Commissions Act satisfies the minimal standard of a “fair and regular” trial required by Common Article 3 and is consistent with that provided in two other international tribunals. There is no requirement for the Fifth Amendment to apply to prevent injustice.
[6]. Would application of the 5th Amendment be “impractical or anomalous”?
The Commission has already determined that there are practical obstacles to, and national interests opposing, the provision of Constitutional rights to unlawful combatants. What of anomaly? Applying the 5th Amendment to unlawful enemy combatants, arguably engaged in unlawful combat[] against coalition forces, possibly associated with international terrorist organizations that chose civilians and civilian objects as their targets, would be anomalous. Because the accused’s status deprives him of the protections accorded to Prisoners of War, giving him the protections accorded to criminal defendants in United States courts would be anomalous.
In providing the limited alternative right it chose, Congress has determined that unlawful combatants are entitled to the minimum protections of Common Article 3 in this regard. Given the longstanding practice of encouraging compliance with the law of war by according enhanced protections to those who do comply, it would be anomalous to provide Constitutional protections to unlawful combatants when their only connection or association with the United States is that they are being held here for having unlawfully opposed us on the field of battle. Nicaragua v. United States, 1986 I.C.J. 14, § 218, 25 I.L.M. 1023, cited at Hamdan v. Rumsfeld, 548 U.S. 557, 776 n. 63 (2007).
In summary, the commission finds that (1) the accused has been found to be an unlawful enemy combatant by a full, fair, open and adversarial hearing; (2) that the site of his apprehension and detention, in the Court’s own words “is a factor that weighs against a finding that he has rights under the [Constitution]”; (3) there are substantial practical arguments against applying the 5th Amendment “with full force and effect” in Guantanamo Bay; (4) that the alternative remedy Congress has provided, is considerably less protective than the 5th Amendment but is consistent with the minimal protections guaranteed to unlawful combatants under Common Article 3; (5) that there is no necessity for the 5th Amendment to prevent injustice, and (6) that application of the 5th Amendment in Guantánamo Bay would be anomalous in some respects. The preponderance of these factors analyzed weigh against application of the 5th Amendment in Guantánamo Bay. The Supreme Court has expressly disclaimed extraterritorial application of the 5th Amendment as recently as 1990: “The claim that extraterritorial aliens are entitled to rights under the 5th Amendment has been emphatically rejected.” United States v. Verdugo-Urquidez, at 268–269 (1990).
Conclusion: The 5th Amendment of the Constitution does not apply to protect [the accused]. 
United States, Guantánamo Military Commission, Hamdan case, Ruling, 20 July 2008, pp. 11–14.
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].” 
Report on US Practice, 1997, Chapter 5.3.
The US Manual for Military Commissions (2007) states:
Public trial
(a) In general. Except as otherwise provided in the M.C.A. [Military Commissions Act of 2006] and this Manual, military commissions shall be publicly held. For purposes of this rule, “public” includes representatives of the press, representatives of national and international organizations, as determined by the Office of the Secretary of Defense, and certain members of both the military and civilian communities. Access to military commissions may be constrained by location, the size of the facility, physical security requirements, and national security concerns. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 806(a), p. II-68.
The US Manual for Military Commissions (2010) states:
Public trial
(a) In general. Except as otherwise provided in chapter 47A of title 10, United States Code, and this Manual, military commissions shall be publicly held. For purposes of this rule, “public” includes representatives of the press, representatives of national and international organizations, as determined by the Office of the Secretary of Defense, and certain members of both the military and civilian communities. Access to military commissions may be constrained by location, the size of the facility, physical security requirements, and national security concerns. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 806(a), p. II-73.
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
The sessions of military commissions shall be public to the maximum extent practicable. In general, all persons granted permission to attend a session except those who may be required to give evidence shall be admitted as spectators. The convening authority shall coordinate travel and attendance of spectators. Spectators must agree in writing, prior to attending any military commission trial session that if any classified or protected information is disclosed they will not publish, release, discuss or share the information identified as protected from disclosure. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 19-7.a, p. 114.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949d. Sessions
“ …
“(c) CLOSURE OF PROCEEDINGS.—(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter.
“(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to—
“(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or
“(B) ensure the physical safety of individuals. 
United States, Military Commissions Act, 2009, § 949d(c)(1) and (2).
In its judgment in the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg stated that “the entire proceedings from the beginning to end were secret and no public record was allowed to be made of them” and concluded, on this and other bases, that the trial of the accused was “unfair”. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
APPELLATE RIGHTS ADVICE
Prior to adjournment, the defense counsel will inform the accused orally and in writing of:
1. The right to submit matters to the convening authority to consider before taking action;
2. The right to appellate review and the effect of waiver or withdrawal of such right;
3. The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 25-6.a, p. 164.
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].” 
Report on US Practice, 1997, Chapter 5.3.
The US Field Manual (1956) reproduces Article 106 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 182.
The manual also uses the same wording as Article 73 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 443.
The US Air Force Pamphlet (1976) provides that there are provisions in the 1949 Geneva Convention III which “grant [the prisoner of war] the right of appeal”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet further states with respect to protected persons arrested for criminal offences: “Among other rights, accused persons are assured the right … to appeal”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
The US Manual for Military Commissions (2007) states:
Appellate proceedings.
(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings under this rule as provided in R.M.C. 1202. Appellate Government counsel shall diligently prosecute an appeal under this rule. Neither party has a right to oral argument under this rule.
(2) Court of Military Commission Review. A government appeal shall, whenever practicable, have priority over all other proceedings before the Court of Military Commission Review. In determining a government appeal, the Court may take action only with respect to matters of law.
(3) Action following decision of Court of Military Commission Review. After the Court of Military Commission Review has decided any appeal, the accused may petition for review by the United States Court of Appeals for the District of Columbia Circuit or the United States may appeal an adverse ruling to the United States Court of Appeals for the District of Columbia Circuit. The parties shall be notified of the decision of the Court of Military Commission Review promptly. If the decision is adverse to the accused, the accused shall be notified of the decision and of the right to petition the United States Court of Appeals for the District of Columbia Circuit for review within 20 days. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 908(c)(1)–(3), p. II-91.
The US Manual for Military Commissions (2010) states:
Notice concerning post-trial and appellate rights
(a) In each military commission, prior to adjournment, the military judge shall ensure that the defense counsel has informed the accused orally and in writing of:
(1) The right to submit matters to the convening authority to consider before taking action;
(2) The right to appellate review, as applicable, and the effect of waiver or withdrawal of such right;
(3) The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them.
(b) The written advice to the accused concerning post-trial and appellate rights shall be signed by the accused and the defense counsel and inserted in the record of trial as an appellate exhibit. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1010, p. II-137.
The manual also states:
Matters submitted by the accused
(a) In general. After a sentence is adjudged, the accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1105(a), p. II-148.
The manual further states:
Further review
(a) Petition to the United States Court of Appeals for the District of Columbia Circuit by the Accused. The accused may petition for review of the decision of the United States Court of Military Commission Review if such petition is filed within 20 days after the date on which—
(1) written notice of the final decision of the United States Court of Military Commission Review is served on the accused or on defense counsel, whichever is earlier; or
(2) the accused submits, in the form prescribed by R.M.C. [Rules for Military Commissions] 1110, a written notice waiving the right of the accused to review by the United States Court of Military Commissions Review. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1205(a), p. II-164.
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.
“ …
§ 950b. Review by the convening authority
“(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence.
“(b) SUBMITTAL OF MATTERS BY ACCUSED TO CONVENING AUTHORITY.—
“(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602 and 2618, §§ 948b(a) and 950b(a) and (b).
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
After the sentence is adjudged, the accused may submit any matters to the convening authority that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 23-3.a, pp. 149–150.
The Regulation also states:
After the convening authority’s action in each case in which a conviction results, the convening authority will forward the complete, original record of trial, as well as two copies of that record, to the Clerk of Court, Court of Military Commission Review … Those records will be accompanied by a transmittal letter containing the identifying data for the accused, the dates of trial, and the date of the convening authority’s action, as well as any subsequent action.
Appellate review is mandatory for any case in which the convening authority has approved a sentence of death. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 24-2 and 24-3.e, pp. 156–157.
The Regulation further states:
Pursuant to 10 U.S.C. § 950g(a), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of the final judgment rendered by a military commission. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 26-1, p. 172.
In addition, the Regulation states:
REVIEW BY THE UNITED STATES SUPREME COURT
a. The United States Supreme Court may review the final judgment of the Court of Appeals for the District of Columbia Circuit by writ of certiorari pursuant to 28 U.S.C. § 1257.
b. The accused has 90 days from the date of entry of the final judgment of the Court of Appeals to file a petition for a writ of certiorari. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 26-3.a and b, p. 173.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950b. Review by the convening authority
“(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—
The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence.
“(b) SUBMITTAL OF MATTERS BY ACCUSED TO CONVENING AUTHORITY.—(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. …
“(c) ACTION BY CONVENING AUTHORITY.—(1) The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.
“ …
“(3)
“(C) In taking action under this paragraph, the convening authority may, in the sole discretion of the convening authority, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission. 
United States, Military Commissions Act, 2009, § 950b(a), (b), (c)(1) and (c)(3)(C).
The Act also states:
§ 950c. Appellate referral; waiver or withdrawal of appeal
“(a) AUTOMATIC REFERRAL FOR APPELLATE REVIEW.—Except as provided in subsection (b), in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Military Commission Review. Any such referral shall be made in accordance with procedures prescribed under regulations of the Secretary.
“(b) WAIVER OF RIGHT OF REVIEW.—(1) Except in a case in which the sentence as approved under section 950b of this title extends to death, an accused may file with the convening authority a statement expressly waiving the right of the accused to appellate review by the United States Court of Military Commission Review under section 950f of this title of the final decision of the military commission under this chapter. 
United States, Military Commissions Act, 2009, § 950c(a) and (b)(1).
The Act further states:
§ 950g. Review by United States Court of Appeals for the District of Columbia Circuit; writ of certiorari to Supreme Court
“(a) EXCLUSIVE APPELLATE JURISDICTION.—Except as provided in subsection (b), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, the United States Court of Military Commission Review) under this chapter.
“(b) EXHAUSTION OF OTHER APPEALS.—The United States Court of Appeals for the District of Columbia Circuit may not review a final judgment described in subsection (a) until all other appeals under this chapter have been waived or exhausted. 
United States, Military Commissions Act, 2009, § 950g(a) and (b).
The US Field Manual (1956) reproduces Article 86 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 162.
The manual also uses the same wording as Article 117 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 324.
The US Air Force Pamphlet (1976) provides: “Article 86 [of the 1949 Geneva Convention III] prohibits punishing POWs [prisoners of war] more than once for the same offence (non bis in idem).” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
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.
“ …
§ 949h. Former jeopardy
“(a) IN GENERAL.—No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense.
“(b) SCOPE OF TRIAL.—No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602 and 2612, §§ 948b(a) and 949h.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 949h. Former jeopardy
“(a) IN GENERAL.—No person may, without the person’s consent, be tried by a military commission under this chapter a second time for the same offense.
“(b) SCOPE OF TRIAL.—No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. 
United States, Military Commissions Act, 2009, § 949h.