¹ Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. 66 Fed. Reg. 57,833 (Nov. 13, 2001).

² The Department of Defense has implemented the President's Military Order of November 3, 2001 with a series of Military Commission Orders, Instructions, and other documents. See generally Dep't of Defense. Military Commissions (providing extensive links to background materials on the Military Commissions), al http://www.defenselink.mil/news/commissions .html. The Secretary of Defense may designate an Appointing Authority to issue orders establishing and regulating military commissions. Military Commission Order No. 1 (March 21, 2002), C.F.R. 9.2, http://www.defenselink.miy news/Mar2002/d20020321ord.pdf. Secretary Rumsfeld designated John D. Altenburg, Jr. as Appointing Authority. Press Release, Dep't of Defense. Appointing Authority Decision Made (December 30, 2003), http://www.defenselink.mil/releases/ 2003/nr20031230-0820.hmtl.

³ Hamdan's counsel, Charles Swift, initially filed the petition in this case in his own name as Hamdan's next friend. The government challenged Swift's standing to do so. At a conference on September 14, 2004, the petition was amended, by consent and nunc pro tunc, to be in Hamdan's name only.

⁴ This order was issued only for the instant case, because briefing of these motions was nearly complete and the issues they raised did not require factual returns. Factual returns must be filed in all of the other Guantanamo detainee cases pending in this court.

⁵ For further development of this argument, see Brief Amici Curiae of Sixteen Law Professors at 9-13.

⁶ See International Committee of the Red Cross, Treaty Database, at http://www.icrc.org/ihl.

⁷ See Brief Amici Curiae of Sixteen Law Professors at 28-30.

⁸ Article 3 of the Third Geneva Convention is called Common Article 3 because it is common to all four of the 1949 Geneva Conventions. It provides: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be found to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be sickness, wounds, detention, or any other cause, shall in all circumstances by treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above- mentioned persons: (a) violence to life and person, inparticular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity,in particular, humiliating and degrading treatment; (d) the passing of sentences andthe carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be commected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

⁹ See also Brief Amici of Sixteen Law Professors at 33 n.32.

¹⁰ The observation in Al-Odah v. United States, 321 F.3d 1134, 1147 (D.C. Cir. 2003), that the Third Geneva Convention is not self-executing merely relies on the reasons stated by Judge Bork in Tel-Oren, 726 F.2d at 809. Since that observation was not essential to the outcome in Al-Odah, and since in any event Al-Odah was reversed by the Supreme Court, I am not bound by it.

¹¹ Hamdan is a citizen of Yemen. The government has refused permission for Yemeni diplomats to visit Hamdan at Guantanamo Bay. Decl. of Lieutenant Commander Charles Swift at 4 (May 3, 2004). It ill behooves the government to argue that enforcement of the Geneva Convention is only to be had through diplomatic channels.

¹² A great many other differences are identified and discussed in David Glazier, Kangaroo Court or Competent Tribunal? Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2015-2020 (2003). Differences include (not an exhaustive list): Article 16 requires that every court-martial consist of a military judge and no less than five members, as opposed to the Military Commission rules that require only three members. Military Commission Order No. 1 (4)(A); Article 10 of the UCMJ provides a speedy trial right, while the Military Commission rules provide none. Article 13 states that pre-trial detention should not be more rigorous than required to ensure defendant's presence, while the Commission rules contain no such provision and, in fact. Hamdan was held in solitary confinement in Camp Echo for over 10 months. Article 30 states that charges shall be signed by one with personal knowledge of them or who has investigated them. The Military Commission rules include no such requirement. Article 31 provides that the accused must be informed before interrogation of the nature of the accusation, his right not to make any statement, and that statements he makes may be used in proceedings against him, and further provides that statements taken from the accused in violation of these requirements may not be received in evidence at a military proceeding. The Military Commission rules provide that the accused may not be forced to testify at his own trial, but the rule does not preclude admission of evidence of prior statements or conduct of the Accused. Military Commission Order No. 1 (5)(F). Article 33 states that the accused will receive notice of the charges against him within eight days of being arrested or confined unless written reason is given why this is not practicable. The Military Commission rules include no such requirement, and in fact, Hamdan, after being moved to Camp Echo for pre-commission detainment, was not notified of the charges against him for over 6 months. Article 38 provides the accused with certain rights before charges brought against him may be referred for trial, which include the right to counsel and the right to present evidence on his behalf. The Military Commission rules provide for no pre-trial referral process at all. Article 41 gives each side one peremptory challenge, while the Military Commission rules provide for none. Article 42 requires all trial participants to take an oath to perform their duties faithfully. The Military Commission rules allow witnesses to testify without taking an oath. Military Commission Order No. 1 (6)(D). Article 52 requires threefourths concurrence to impose a life sentence. The Military Commission rules only require two-thirds concurrence of the members to impose such a sentence. Military Commission Order No. 1 (6)(F). Article 26 provides that military judges do not vote on guilt or innocence. Under the Military Commission rules, the Presiding Officer is a voting member of the trial panel. Military Commission Order No. 1 (4)(A).

¹³ Griffin B. Bell, a former United States Circuit Judge and Attorney General; William T. Coleman, Jr., a former Secretary of Transportation; Edward George Biester, Jr., a former Congressman, former Pennsylvania Attorney General, and current Pennsylvania Judge; and Frank J. Williams, Chief Justice of the Rhode Island Supreme Court. See Dep't of Defense, Military Commission Biographies, http://www.defenselink.mil/ news/Aug2004/ commissions_biographies.html.

¹⁴ International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, art. 14(d)(3); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, art. 75.4(e). This includes, at a minimum, all hearings in which the prosecutor participates. E.g., Eur.Ct.H.Rts., Belziuk v. Poland, App. No. 00023103/93, Judgment of 25 March 1998, para. 39. Brief Amici Curiae of Louise Doswald-Beck et al. at 32-33 n.137. In this country, as Justice Scalia noted in Crawford v. Washington, 124 S. Ct. at 1363, the right to be present was held three years after the adoption of the Sixth Amendment to be a rule of common law founded on natural justice (quoting from State v. Webb, 2 N.C. 104 (1794)).

15 InKangaroo Court or Competent Tribunal?, supra note 14 at 2020-22, the author suggests that one possible reading of this provision would require consistency only with those nine UCMJ articles (of 158 total) that expressly refer to or recite their applicability to military commissions. A review of the articles that contain such references or recitals, however, see id. At 2014 n.23, demonstrates the implausibility of such a reading.

16 Yamashita has been undercut by history in another important respect. The Supreme Court found the guarantee of trial by court-martial for prisoners of war in the 1929 Geneva Convention inapplicable to General Yamashita because it construed that provision as applicable only to prosecutions for acts committed while in the status of prisoner of war. The Third Geneva Convention, adopted after and in light of Yamashita, made it clear that the court-martial trial provision applies as well to offenses committed by combatants while combatants. Third Geneva Convention, art. 85. See also, Glazier, supra note 12 at 2079-80.

17 The statute Congress enacted after and in light of the Craig opinion, 18 U.S.C. § 3509, carefully protects the rights of child victims and witnesses in abuse cases but preserves the right of the accused to be present. Even if a child witness is permitted to testify by videotaped deposition, the accused must be “present” via two-way television, and the defendant must be “provided with a means of private, contemporaneous communication with the defendant's attorney during the deposition.” 18 U.S.C. § 3509(b)(2)(B)(iv).

18 Hamdan does not currently challenge his detention as an enemy combatant in proceedings before this Court.

19 The Supreme Court's recent decision in Rasul does little to clarify the Constitutional status of Guantanamo Bay but may contain some hint that non-citizens held at Guantanamo Bay have some Constitutional protection. See Rasul, 124 S.Ct. at 2698 n.15.