Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section G. Examination of witnesses
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.