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In the past, military commissions have been used by the United States and other States toprosecute enemy belligerents for violations of the law of war and for acts of unprivilegedbelligerency. Military commissions have also been used for the trial of offenses under U.S. lawwhere local courts were not open and acting (i.e., where martial law applies), and for the trial ofviolations of occupation ordinances. These military commissions have been regarded asinstrumentalities for the more efficient execution of the war powers vested in Congress and thepower vested in the President as Commander-in-chief in war. 256 Military commissions havebeen used instead of courts-martial because U.S. courts-martial have been adapted to thecircumstances of disciplining members of the armed forces and have not been crafted with aview towards certain other offenses that are also committed during armed conflict. 257Similarly, the use of military commission proceedings continues to be appropriate incertain circumstances because the rules for such proceedings are specially adapted to reflect therealities of the battlefield and conducting investigations in a war zone. 25818.19.3.8 War Crimes Act. The War Crimes Act authorizes the prosecution ofindividuals for certain war crimes if the victim or the perpetrator is either a U.S. national or a256 WINTHROP, MILITARY LAW & PRECEDENTS 839 (“But, in general, it is those provisions of the Constitution whichempower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize theemployment of all necessary and proper agencies for its due prosecution, from which this tribunal derives itsoriginal sanction. Its authority is thus the same as the authority for the making and waging of war and for theexercise of military government and martial law. The commission is simply an instrumentality for the moreefficient execution of the war powers vested in Congress and the power vested in the President as Commander-inchiefin war.”).257 WINTHROP, MILITARY LAW & PRECEDENTS 839 (“The occasion for the military commission arises principallyfrom the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively tomembers of the military force and to certain specific offences defined in a written code. It does not extend to manycriminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required.A commander indeed, where authorized to constitute a purely war-court, may designate it by any convenient name;he may style it a ‘court-martial,’ and, though not a court-martial proper, it will still be a legal body under the laws ofwar. But to employ the same name for the two kinds of court could scarcely but result in confusion and in questionsas to jurisdiction and power of punishment.”).258 Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012 DIGESTOF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 579-80 (“Military commissions are also appropriate inproper circumstances, and we can use them as well to convict terrorists and disrupt their plots. … It’s important tonote that the reformed commissions draw from the same fundamental protections of a fair trial that underlie ourcivilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And theysecure the right to appeal to Article III judges – all the way to the United States Supreme Court. In addition, like ourfederal civilian courts, reformed commissions allow for the protection of sensitive sources and methods ofintelligence gathering, and for the safety and security of participants. A key difference is that, in militarycommissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expectmilitary personnel to administer warnings to an enemy captured in battle. But instead, a military judge must makeother findings – for instance, that the statement is reliable and that it was made voluntarily.”).1106