Government Merits Brief - Hamdan v. Rumsfeld

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propriate. But as the omitted introductory clause of the sentence
petitioner quotes makes clear, the President may tailor
those procedures to the current exigency, and so the procedures
are “[s]ubject to * * * any regulations prescribed by
the President or by other competent authority.” Ibid. 21
More generally, petitioner’s assertion that military commissions
historically have been required to follow rules for
courts-martial is incorrect. It is settled that military commissions
“will not be rendered illegal by the omission of details
required upon trials by court-martial” (and that the rules for
commissions may by regulation depart from those of courtsmartial).
Winthrop, supra, at 841. Thus, while military tribunals
“should observe, as nearly as may be consistently with
their purpose,” the rules of procedure of courts-martial, conformance
to those rules “is not obligatory,” and military commissions
were “not bound by the Articles of War.” William E.
Birkhimer, Military Government and Martial Law 533-535
21 Petitioner asserts (Br. 22-23) that, during World War II, the United States
took the position that “conducting a commission without the participation of the
accused was a punishable violation of the laws of war.” Petitioner may
personally be present at every stage of the trial before his military commission,
however, except if he engages in disruptive conduct or the prosecution
introduces classified or otherwise protected information. 32 C.F.R. 9.5(k);
Military Commission Order No. 1, § 6(B)(3) and (D)(5)(b). Those exceptions,
moreover, are surely permissible. See Charter of the International Tribunal,
Aug. 8, 1945, art. 12, 59 Stat. 1548, 82 U.N.T.S. 290 (authorizing trial of
defendant in his absence “in the interests of justice”). International tribunals,
like domestic courts, permit trial proceedings in the defendant’s absence if he
engages in disruptive conduct. See, e.g., International Criminal Tribunal for
Former Yugoslavia R.P. & Evid. 80. Equally compelling reasons support the
rule permitting the exclusion of the defendant when the prosecution is
introducing classified or otherwise protected information for which no adequate
substitute is available and whose admission will not deprive the defendant of
a full and fair trial. See Pet. Br. App. 64a. And there is certainly no basis to
presume, before the trial has even commenced, that the trial will not be
conducted in good faith and according to law.