Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section I. Presence of the accused at the trial
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.