Related Rule
United States of America
Practice Relating to Rule 100. Fair Trial Guarantees
Section J. Compelling accused persons to testify against themselves or to confess guilt
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.