Background

Mohammed el Gharani, a Chadian national born and brought up in Saudi Arabia, decided to move abroad because he faced discrimination as a non-national of African origin and felt his prospects of economic or educational advancement were poor.

He went to Pakistan, shortly before the 11 September 2001 attacks in the USA reportedly to study English and gain IT skills. In order to get a passport that would allow him to travel unaccompanied, he needed to be over 18, so he lied about his age.

In October 2001, when he was 15 years old, Mohamed was praying in a mosque in Karachi when it was raided by Pakistani police. So began years of incarceration as a result of the US-led "war on terror". Mohamed ended up in Guantánamo Bay Naval Base, Cuba, where he remains to this day. His body is apparently covered in scars caused by the torture and beatings he has suffered. His teeth are said to be falling out because of neglect, and his tongue is apparently cracked as a result of dehydration. The psychological harm his ordeal has caused is harder to gauge.

Torture

After his arrest Mohamed was taken to a prison in Pakistan where he alleges:

He was hung by his wrists, naked apart from his shorts, with his feet barely touching the floor. If he moved his interrogators beat him. This continued for up to 16 hours a day for three weeks.

He was blindfolded for this entire period, apart from three to five minutes each day when he ate.

He was forced to drink lots of water before his interrogators tied his penis with string so that he could not urinate.

When his Pakistani captors told him that he would be transferred to US custody, Mohamed was overjoyed. He told his lawyer he thought that the USA was "all about democracy, and they were a fair and good people" and that his torture would end.

Mohamed's optimism was rapidly shattered. He says that when he was handed over to US custody, he was put in blue overalls, hooded, shackled, beaten and threatened with death. He was taken by helicopter to Kandahar, Afghanistan, where he alleges:

He was stripped naked and repeatedly beaten.

He was doused in freezing water and left exposed to the elements for three or four nights.

A guard held his penis with a pair of scissors and told him he would cut it off.

He was repeatedly called "nigger" by US soldiers, a term of racist abuse he had never heard before.

In January 2002, Mohamed was one of the first "enemy combatants" to be transferred to Guantánamo Bay. Sedated, shackled and hooded for the flight, he was allegedly beaten severely on arrival and threatened with torture that "would be worse than anything he had been through in Pakistan". He says he has been subjected to constant racial abuse at Guantánamo Bay. He also alleges:

He was hung from hooks, with his feet not touching the ground, and then beaten. This happened around 30 times, for up to eight hours each time.

He was placed in extremely cold rooms and subjected to loud music.

He was moved between cells every 20 minutes so that he could not sleep.

He was burned with a cigarette during an interrogation.

He was forced to look at pornographic images.

On one occasion when guards were removing him from his cell, he was assaulted with particular brutality. He was pepper-sprayed and guards in full riot gear slammed his head into the floor causing him to lose a tooth.

Contrary to claims that juveniles in Guantánamo Bay have been held in conditions befitting their age, Mohamed has been held for over a year in Camp V, which is modelled on the harsh "super-maximum" security prisons on the US mainland. Mohamed is kept in a concrete isolation cell, in solitary confinement, for up to 24 hours a day. He is supposed to be allowed to exercise for an hour three times a week, but once a week or even once a fortnight is the norm. There is 24-hour lighting. Large, loud fans designed to prevent detainees from communicating between cells are kept on all the time.

Children in Guantánamo Bay

In April 2003, the US authorities revealed that children as young as 13 were among those held at Guantánamo Bay. The Chairman of the Joint Chiefs of Staff in 2003 stated: "Despite their age these are very, very dangerous people… they may be juveniles, but they’re not on a little league team anywhere, they’re on a major league team, and it’s a terrorist team".

In 2004, the Department of Defense announced that it had released three juveniles from Guantánamo and said that "every effort" had been made to provide for the "special physical and emotional care" of juveniles held at Guantánamo. It stated that juveniles were held in a separate detention camp, Camp Iguana, that they were taught English and mathematics, could exercise daily and were even taken on trips to the beach.

The Pentagon says that five juveniles have been released and that no others are held at Guantánamo. The Pentagon has defined child detainees as those aged under 16, contrary to international standards.

Mohammed el Gharani is not the only juvenile held at Guantánamo Bay. At least four and possibly nine of the current Guantánamo detainees were under 18 when detained. Some of them were as young as 13.

In addition to the allegations of torture, there have also been reports of attempted suicide by juvenile detainees. Their stories belie the rosy picture painted by the US administration.

The detention, interrogation and alleged torture of unrepresented children at Guantánamo Bay contravene international laws that apply to both adults and children, as well as the special standards developed by the international community to protect children.

Legal issues

Over a year has passed since the June 2004 US Supreme Court ruling, in Rasul v Bush, that the federal courts had jurisdiction to hear habeas corpus petitions from foreign nationals detained at Guantánamo Bay. Yet none of the detainees still held there has had the lawfulness of his detention judicially reviewed. Instead, the administration set up Combatant Status Review Tribunals to determine if each detainee was an "enemy combatant". For this process, the detainee had no access to secret evidence used against him or to legal counsel. Meanwhile, the tribunals were allowed to draw on evidence extracted under torture or other ill-treatment.

Mohammed el Gharani remembers very little of his tribunal hearing. He was charged with entering Pakistan with a false passport, which was true. He was also accused of being in Tora Bora, an area of Afghanistan believed to be an al-Qa’ida hideout. To this charge he answered, "Where’s Tora Bora?" The tribunal found that Mohamed had been properly designated as an "enemy combatant".

After the June 2004 ruling, lawyers representing Guantánamo detainees filed habeas corpus petitions with the US District Court in Washington DC. The first judge on the DC District Court to interpret the Rasul v Bush decision, Judge Richard Leon, ruled in favour of the executive authority of the US President during wartime, and said that the Guantánamo detainees had no right to challenge the lawfulness of their detention.

Two weeks later, Federal District Judge Joyce Hens Green gave a different opinion. She rejected the government’s argument that the detainees have no substantive rights, and said that the detainees had the US constitutional right not to be deprived of liberty without due process of law. The government is seeking to have a higher court, the US Court of Appeals for the District of Columbia Circuit, resolve the difference of opinion in its favour. Meanwhile, the legal limbo of the detainees continues, with none having had the lawfulness of his detention judicially reviewed.

Whatever the Court of Appeals decides, the case is likely to be sent for appeal to the US Supreme Court. This would keep the detainees in their legal limbo and leave the lawfulness of their detention unreviewed by the courts.