60 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights Supreme Court ruled in 2004 that detainees held outside the United States in Guantánamo Bay had the right to challenge the lawfulness of their detention in a federal court through a petition of habeas corpus (Rasul v. Bush).119 However, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 then stripped that right again, until the landmark decision of Boumediene v. Bush, handed down in 2008.120 The Supreme Court restored the right to habeas corpus, and rejected the government claim that, as non-US nationals, held outside US territory, the detainees were beyond legal protection in the US courts. The Court rejected the administration’s argument that granting habeas corpus in wartime would place too great a burden on the courts and would reveal secret information. The ruling was broadly consistent with the jurisprudence of human rights bodies which have found that the right to habeas corpus to be so fundamental that it may never be suspended.121 5.2 Right to a fair trial: military commissions The concept of the war paradigm also underlies the adoption of the Military Commissions Act (MCA), signed into law on 17 October 2006. The legislation establishes a system to try detainees held as “alien enemy unlawful combatants” for violations of the laws of war. The Panel believes that the US military commissions do not comply with relevant international standards governing the right to a fair trial (see fuller discussion of fair trial and military courts generally in Chapter Six). The executive decides on every significant aspect of the case – whether to charge, and whether and when to release the defendant, subject to very narrow judicial review by a federal appellate court; the commissions are presided over by a military judge, who determines questions of law, and five to twelve active members of the armed forces acting as jury are named to their position by an appointee of the Secretary of Defence. A defendant’s right to lawyer of his or her choosing is severely restricted, and the presumption of innocence is undermined by relaxed rules of evidence and other procedures favouring the prosecution.122 Had the US accorded prisoner of war status to fighters captured in Afghanistan in 2002 and charged them with pre-capture offences, they would (in accordance with Article 102 of the Third Geneva Convention) have been tried before the same courts, and according to the same procedures, as US military personnel.123 Thus, detainees would have been tried by civilian courts or courts martial operating under the United States Uniform Code of Military Justice. Moreover, the US authorities could not 119 US Supreme Court, Rasul v. Bush, 542 US 466 (2004). 120 US Supreme Court, Boumediene v. Bush, US 553 (2008). 121 See ICCPR, Article 9(4); UN Human Rights Committee, General Comment No. 29, para. 15; and Legal Commentary to the ICJ Berlin Declaration, Principle 6, at 51 et seq. 122 See for example, Special Rapporteur on Human Rights and Terrorism, Mission to the United States of America, UN Doc. A/HRC/6/17/Add.3, 22 November 2007, paras. 26-28. 123 Article 102 of the Third Geneva Convention.