detention in Guantánamo judges have in some cases appeared hesitant to rule in favour of detainees given the costs of a potential error. For instance, in a concurring opinion in Esmail v. Obama, the judge said, “[w]hen we are dealing with detainees, (…) one cannot help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism”.256 Finally, while the United States has informed ODIHR that extensive efforts have been undertaken to declassify evidence in habeas corpus proceedings,257 federal courts reviewing Guantánamo detention still routinely consider classified information.258 As classified information is accessible to attorneys with security clearances only but cannot be shared with the petitioner,259 its use may hinder detainees’ ability to challenge the lawfulness of their detention. ODIHR is concerned that these issues appear to be preventing detainees from effectively accessing their right to challenge the lawfulness of their detention before a court, which would be a violation of international standards on the prohibition of arbitrary detention. ACCESS TO COUNSEL 177. Individuals held at Guantánamo did not have access to counsel until the second half of 2004, following the Supreme Court decision in Rasul v. Bush.260 Consequently, all persons apprehended and detained at Guantánamo until that time were denied the assistance of a lawyer for up to two years of their detention. International human rights law, however, provides for “prompt and regular access” to counsel to facilitate the exercise of the right to habeas corpus and ensure its effectiveness.261 It also stipulates that individuals detained in connection with criminal prosecutions are to receive legal assistance from the outset of their detention.262 ODIHR therefore concludes that, in situations where international human rights law governs the grounds and procedures for the detention of Guantánamo detainees, i.e., when detainees were arrested outside of any armed conflict or after the end of the international armed conflict in Afghanistan, a delay of several months to two years before receiving any legal assistance violates Article 9 of the ICCPR. Such access cannot very hard to see this Court upholding any successful petition. For example, the court will accept any amount of hearsay evidence. Additionally, the presumptions always work in the government’s favour; ODIHR interview with David Remes, 4 March 2014: Remes explained that the Court of Appeals for the District of Columbia Circuit considers that it has no role in looking into lawof-war detention. Therefore, the judiciary is no longer a meaningful resort. See, also, ODIHR interview with the American Civil Liberties Union, 28 February 2014; ODIHR interview with Navy Lieutenant Commander Kevin B. Bogucki, JAGC, 26 February 2014. 256 United States Court of Appeals for the District of Columbia Circuit, Yasein Khasem Mohammad Esmail v. Barack Obama, Case No. 10-5282, 8 April 2011, <http://scholar.google.com/scholar_case?case=1139714652020253355&hl=en&as_sdt=6&as_vis=1&oi=scholarr>. 257 ODIHR meeting with the Department of Defense Office of the General Counsel and Office of Detainee Policy, op. cit., note 194. 258 David Cole, “Military Commissions and the Paradigm of Prevention”, in Fionnula Ni Aolain & Oren Gross, Guantánamo and Beyond, Exceptional Courts and Military Commissions in Comparative Perspective (Cambridge: Cambridge University Press, 2013), p. 103; ibid. 259 US comments to the draft report. 260 Richard J. Wilson, “Defending the Detainees at Guantánamo Bay”, American University Washington College of Law Human Rights Brief, 2005, p. 2, <http://www.wcl.american.edu/hrbrief/12/3wilson.pdf >; The Report of The Constitution Project's Task Force on Detainee Treatment, op. cit., note 183, p. 64; ODIHR interview with Matthew O’Hara, op. cit., note 255; ODIHR interview with Lakhdar Boumediene, op. cit., note 216. 261 UN HRC, General Comment No. 35, op. cit., note 92, para. 46. 262 Ibid., para. 35. 73