Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
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.