367. However, other factors undermine the presumption of innocence. For instance, the accused,
who has already been classified as an enemy combatant by the CSRTs, is presented as an
alien “unprivileged enemy belligerent” before facing trial. This designation, which is
indispensable to satisfy the personal jurisdiction requirements of the MCA, indicates to the
judge and to the members of the military commission that the accused engaged in
hostilities against the United States or coalition partners, purposefully and materially
supported hostilities and/or was part of al Qaeda before the trial even begins.879
Additionally, the length of detention may affect the presumption of innocence. Of the
detainees currently facing pre-trial proceedings, one detainee has been in detention for
approximately 13 years, five detainees have been in detention for approximately 12 years
and one detainee has been detained for almost nine years.880 Notably, the Human Rights
Committee has found that nine years of preventative detention constituted a violation of the
right to be presumed innocent.881 The lengthy ongoing detention of the detainees currently
facing trial by military commissions likely violates international standards on the right to
be presumed innocent.
368. Senior government officials’ public statements on the guilt of the detainees also affect the
presumption of innocence. The President, the Secretary of Defense, the United States
Attorney General, members of Congress and senior military figures have made numerous
statements that have asserted the guilt of the defendants.882 These statements include those
that refer to detainees as “killers”, “terrorists”, “murderers”, “the worst of the worst”,
members of al Qaeda who would “engage in murder once again” and, in Khalid Shaikh
Mohammad’s case, “the mastermind of the September 11 attacks (…) [who] conceived and
planned the hijackings and directed the actions of the hijackers”.883 In some instances,
879
See MCA 2009, § 948(a)(7).
This detention includes detention in both Guantánamo and secret CIA detention facilities. Al-Nashiri has been detained since
2002, while al Shibh, Khalid Shaikh Mohammad, al Baluchi, bin ‘Attash and al Hawsawi have been in detention since 2003. AlIraqi has been detained since 2006. Senate Study on the CIA RDI Programme, Executive Summary, op. cit., note 171, pp. 458461;“The Guantánamo Docket”, The New York Times website, op. cit., note 88; Rosenberg, “Who’s still being held at
Guantánamo”, op. cit., note 88; Rosenberg, “By the Numbers”, op. cit., note 88.
881
UN HRC, Cagas, Butin and Astillero v. The Philippines, op. cit., note 871, para. 7.3.
882
A brief submitted to the military commission in the Mohammad et al. case includes approximately 71 public statements made
by US officials that infer the guilt of the accused. A similar brief was submitted in Al-Nashiri’s case. United States Military
Commission, United States of America v. Mohammad et al., AE 031B (MAH), “Defense Reply to Government Response to Joint
Defense Motion to Dismiss for Unlawful Influence”, 1 June 2012, p. 1; United States Military Commission, United States of
America v. Mohammad et al., AE 031, “Joint Defense Motion for Unlawful Influence”, 11 May 2012; United States Military
Commission, United States of America v. Al-Nashiri, AE 197, op. cit., note 839.
883
See, also, Part 2-II-A for additional statements. Examples of relevant statements include: “Transcript of Bush News
Conference on Iraq”, CNN website, 7 March 2003, <http://edition.cnn.com/2003/US/03/06/bush.speech.transcript/>; “Bush
Reconsiders Prisoners’ Rights”, BBC website, 29 January 2002, <http://news.bbc.co.uk/2/hi/americas/1788062.stm>: President
Bush said “these are killers, these are terrorists”; Secretary of Defense Donald H. Rumsfeld, “Secretary Rumsfeld Media
Availability En Route to Guantanamo Bay, Cuba”, United States Department of Defense website, 27 January 2002,
<http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2320>: “these are among the most dangerous, best trained
vicious killers on the face of the earth”; Liz Halloran, “Trying Sept. 11 Suspects in U.S. A Political Gamble”, NPR website, 19
November 2009, <http://www.npr.org/templates/story/story.php?storyId=120546400>: United States Attorney General Eric
Holder said “I'm not going to base a determination on where these cases ought to be brought on what a terrorist - what a murderer
- wants to do”; Fleischer, “Press Briefing by Ari Fleischer”, op. cit., note 840: The White House Press Secretary said “for the
most part they're all al Qaeda, and if they were free they would engage in murder once again. These are not mere innocents.
These are among the worst of the worst who are being detained because of what they have done, because of the suicidal nature of
the actions that they have taken - their willingness, their training to go out and kill and destroy and engage in suicide if they can
take others with them”; United States President George W. Bush, “Remarks at a Texas Victory 2006 Rally in Sugar Land,
Texas”, 30 October 2006, <http://www.presidency.ucsb.edu/ws/index.php?pid=24237&st=&st1=>; United States Military
880
160
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