82 | Towards the Closure of Guantanamo 185. In analyzing the compatibility of the detention regime with the standards of the inter-American system, the operation of presumptions and burdens of proof may play a decisive role in whether access to judicial protection is effective in practice. Accordingly, having reviewed the evolution of the case law, the Commission must underline that the application of a “preponderance of the evidence” standard in these cases, with a presumption of “regularity” applied to government documents, following which the burden shifts to the detainee to prove that he does not fall within the criteria for detention, fails to offer the protection that access to the writ of habeas corpus is intended to provide. 186. The comment made by Circuit Judge Tatel in his dissenting opinion indicating that the ruling in Latif v. Obama “comes perilously close to suggesting that whatever the government says must be treated as true” 217 demonstrates the seriousness of this question. While fundamental human rights standards uniformly indicate that detention must be understood and applied as an exceptional measure, the standards being applied to the Guantanamo detainees clearly tilt the presumptions in favor of continued detention and against release. Moreover, this regime of presumptions and burden shifting places the detainee at a marked disadvantage in trying to present his claim and in being fully heard on its substance. Given the duration of the detention and severity of the regime, in some cases over more than a decade of indefinite detention, it is clear that a higher standard of review is required to bring standards into compatibility with human rights norms. 187. Further, although the CMO that governs Guantanamo detainee cases states that “[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful,” 218 federal courts have shifted this burden from the Government to the detainees. The federal courts use a holistic test to determine if someone was part of an enemy group as defined by the AUMF. The IACHR observes that the evidence is often circumstantial, turning on such elements as whether the individual stayed in a guest house that may allegedly have been associated with Al-Qaeda or the Taliban, or traveled to Afghanistan or Pakistan using a particular route. 188. The Inter-American Commission is concerned over this shifting pattern of factfinding by district courts, particularly after the D.C. Circuit Court decision in AlAdahi v. Obama, raising questions about the correct application of Boumediene. Article XXVI of the American Declaration encompasses the right to the presumption of innocence. The principle of presumption of innocence has been examined at length by the IACHR and the Inter-American Court; the latter has stated that “the principle of the presumption of innocence –inasmuch as it lays down that a person is innocent until proven guilty- is founded upon the existence of judicial guarantees.” 219 The State, therefore, bears the burden of proving the legality of the 217 218 219 Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012) (Tatel, J. dissenting). In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A (Nov. 6, 2008). IACHR, Report No. 67/06, Case 12.476, Publication, Oscar Elias Biscet et al., Cuba, October 21, 2006, para. 165. Organization of American States | OAS