Chapter4 Access to Justice | 83 detention. The right to the presumption of innocence implies that the detainee “does not have to prove that he or she did not commit the crime with which he or she is charged, since the accuser bears the onus probandi.” 220 189. The IACHR reiterates, in this regard, that the United States has the international legal obligation to afford all persons detained under its jurisdiction, including those held in Guantanamo Bay, a proper judicial proceeding to challenge the legality of their detention. The writ of habeas corpus is among those judicial remedies that are essential for the protection of non-derogable rights and that serve to preserve legality in a democratic society. 221 In order to respect the detainees’ right to a meaningful review, judicial remedies to protect the right to personal liberty must be available, adequate and effective. The essential objective of the international protection of human rights is to safeguard persons from the arbitrary exercise of power by the State. Therefore, the non-existence of effective domestic remedies places persons detained at Guantanamo in a defenseless position. 222 The IACHR regrets in this regard that the U.S. Supreme Court has declined to examine whether Guantanamo detainees are being afforded a meaningful opportunity to challenge the legality of their detention. 2. Proceedings before the military commissions 190. On November 13, 2001, in response to the September 11, 2001 attacks, President Bush issued a Military Order on “Detention, Treatment, and Trial of Certain NonCitizens in the War Against Terrorism.” According to this order, non-U.S. citizens suspected of terrorism would be tried by military commissions not governed by the “principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” 223 Under the United States Constitution, Congress has the power to declare war and “make rules concerning captures on land and water,” and to define and punish violations of the “Law of Nations.”224 On March 21, 2002, the Department of Defense issued Military Commission Order No. 1, establishing the procedures for trials by the military commissions. 225 191. Salim Ahmed Hamdan, a Guantanamo detainee who had been charged before a military commission, filed a petition for a writ of habeas corpus before the D.C. District Court challenging the constitutionality of the military commission. The 220 221 222 223 224 225 I/A Court H.R., Case of Suarez-Rosero v. Ecuador, Judgment of November 12, 1977 (Merits), Series C No. 35, para. 77. See, mutatis mutandi, I/A Court H.R., Habeas corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights). Advisory Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 42. See in this regard, IACHR, Application to the Inter-American Court of Human Rights in the case of Leopoldo Lopez Mendoza v. Venezuela, Case 12.668, December 14, 2009, paras. 70 and 80. Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Section 1 (f). Available at: http://fas.org/irp/offdocs/eo/mo-111301.htm United States Constitution, Art. I, Section 8. Department of Defense, Military Commission Oder No. 1, March 21, 2002. Available at: http://www.defense.gov/news/Mar2002/d20020321ord.pdf Inter-American Commission on Human Rights | IACHR