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Clive Stafford Smith

The United States has explicitly misled the public about kids being in Guantanamo Bay. On the BBC Radio 4 PM programme on January 29, 2004 Jon Monel interviewed Lieutenant commander Barbara Burfeind at the Department of Defense in Washington:

BURFEIND: "We don't plan on er detaining em juveniles at Guantanamo further. Er I can't say in terms of the future of anywhere else".

JON MANEL: "Why not at Guantanamo anymore?"

BURFEIND: "Em, they just, I've just been told that they are not planning on having juveniles at Guantanamo."

This was false when Lt. Cdr. Burfeind made the statement, and it remains false today. There are apparently nine juveniles in Guantanamo Bay, with five who have been released. To the best of our information (although this is not confirmed), none of these children is being held in Camp Iguana, and we know that some are being held in Camp V, which is the most onerous of the camps, with treatment that is shameful for adults, let alone children.

The following table represents the kids who are in Guantanamo Bay, or who have been there. Various information needs confirmation, as noted below, and there is no confidence that this is an exhaustive table:

#	Name	Photo	Nationality	DOB / Age at seizure	Comments
1.	M.C. (el Gharani, Mohammed)	No photo available	Chad	Seized Oct 21 +/- 2001; aged 14 or 15 / Nov. 1987.	Confirmed. Seized in Pakistan. There is no evidence that he was ever in Afghanistan prior to the U.S. taking him there. He is being held in Camp V. Extensive memo about his status.
2.	OK (Khadr, Omar)		Canada	15 when seized	Confirmed. Age admitted by the US. He is being held in Camp V. “Omar was 15 years old when American troops captured him on July 27, 2002, after an ambush on the troops. By October 31, 2002, the government had transferred him to Guantanamo, where they placed him in Camp Delta with the adult population. By that time, Khadr had turned 16.” (Jamison)
3.	ASAS (al Shehry, Abdul Salam)		Saudi Arabia	15 when seized / April 1987	Confirmed. He was 15 when first detained. Father is Gaithan al Shehry. This is confirmed in www.alwatan.com.sa/2005-05-16/first_page/first_page02.htm (as translated) & www.arabnews.com/?page=1&section=0&article=63220&d=5&m=5&y=2005
4.	NAO (Al Otaibi, Naief Fahad Mutlaq)		Saudi Arabia	1987
5.	YAS (al Shahri, Youssef)		Saudi Arabia	14 when seized	Confirmed. He was 14 when first detained. Uncle is Awad al Shahri. This is confirmed, along with a photo in www.alwatan.com.sa/2005-05-16/first_page/first_page02.htm (as translated)
6.	SB	No photo available	Afghan
7.	HBA (Bin Attash, Hassin)	No photo available	Yemeni		He is now 20 but was 17 when he was seized. In 2002, his house as raided in Pakistan. After 4 days in a Karachi prison he was taken to the ‘Prison of Darkness’ in Kabul. He was held and tortured there until September 19, 2002. He was then rendered to Jordan with another prisoner called Abu Otaibi Hadarami, where he spent 3 months of torture 12 hours a day. Ultimately, he signed whatever they asked of him. On January 8, 2004, he was taken back to the Prison of Darkness in Kabul, then to Bagram, and then Guantanamo. One of his brothers was in Bagram, but he has disappeared. His father, Mohammed, is 70 years old and has been imprisoned in Saudi allegedly under U.S. orders. (Source of data: unclassified report by Omar Deghayes)
8.	MAN (Al Nadour, Mohammed)	No photo available	Morocco		Unconfirmed
9.	TL (LNU, Tareq)	No photo available	Morocco		Uncertain whether he was a juvenile. Family lives in Italy.
10.	MIA (Agha, Mohammed Ismail)		Afghan		Freed by the US on January 29, 2004
11.	NL (LNU, Naqeebullah)		Afghan		Freed by the US on January 29, 2004
12.	AR (Rehman, Asadullah)		Afghan		Freed by the US on January 29, 2004
13.	AB (Bashir, Ahmad)	No photo available	Pakistan		Next friend Jannat Bibi. Released and remains in custody in Pakistan. From a village in Pakistan near Jhang. Allegedly went to fight in 2000 (17 at the time) in Kashmir. Family did not hear from him until 2002, jail in Afghanistan. Then Gitmo. Released early 2005.
14.	FL (LNU, FNU)	No photo available	Saudi		Ahmad Mazhar, counsel for the Saudi government, confirms that a Saudi juvenile was released among the 5 Saudis and he is the only one who has been freed in Saudi.

Note that under U.S. law juveniles should not be identified in their court documents. Omar Khadr therefore goes under the initials O.K.; Mohammed el Gharani is M.C. because he is from Chad and is also called Mohammed al Chady; etc.

A law review article by Melissa Jamison (Detention of Juvenile Enemy Combatants at Guantanamo Bay: The Special Concerns of the Children, 9 UC Davis J. Juv. L. & Pol'y 127, 136-36 (2005)), provides a useful background to the issue, although it is wrong in many respects (through no fault of the author – she was provided with false information by the U.S. military).

Initially, it is important to note that every legal body defines a ‘juvenile’ or ‘child’ prisoner as one who was detained for offences committed prior to his eighteenth birthday. This is the case according to the Convention on the Rights of the Child, Feb. 16, 1995, arts. 1, 38, 1577 U.N.T.S. 3, [1] and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, [2] and other similar conventions. [3]

The U.S. military seeks to define this differently:

At the outset, this discussion requires a definition of "juvenile." The United States military applies this only to persons under the age of 16. * * * Clearly, this position is unacceptable. As stated by UNICEF, the release of the youngest boys "does not end the issue of child soldiers at Guantanamo," but instead requires officials to "turn their attention to the other juvenile detainees at Guantanamo Bay - a small number of 16-and 17-year-olds that have not been separated out of the adult population."

Jamison , at 150 (footnotes omitted). Note that even under this rule some of the Guantanamo prisoners – notably Mohammed el Gharani – would qualify as children. However, the U.S. position is untenable.

The U.S. military initially admitted that it was holding juveniles, identifying them as three Afghani kids:

The government first admitted it was detaining "enemy juvenile combatants" at Guantanamo Bay on April 21, 2003. At the time of their initial detention, the boys were ages 10, 12, and 13. Yet the government considered them to be very dangerous. According to Maj. Gen. Geoffrey Miller, Commander of the Joint Task Force at Guantanamo:

I would say despite their age, these are very, very dangerous people ... . Some have killed, some have stated they're going to kill again. So 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. And they're in Guantanamo for very good reason; for our safety, for your safety.

Despite this assessment, the military placed the boys in Camp Iguana, a facility separate from the adults. They designed the facility to provide a "semblance of normal life" for the child detainees. Efforts to this effect included: a 30-foot by 7-foot hole in the mesh fence surrounding the compound that enables the boys to see the ocean; air-conditioning; and apartment-like living quarters with two bedrooms, a living room, a bathroom, and a kitchenette. Camp Iguana has other amenities, including twin beds rather than cots, armchairs and sofas, a television and VCR, and board games.

Jamison, 9 UC Davis J. Juv. L. & Pol'y at 136-36 (footnotes omitted).

The Afghani kids were released on January 29, 2004:

Statements by the guards might also have affected the move to release the boys. They noted the boys were always respectful and, if anything, considered them troubled rather than dangerous. As this reality became more evident, the military began to call the boys "child soldiers" and described their stay at Guantanamo as a "treatment program." This shift in rhetoric eventually led to their release on January 29, 2004.

Jamison , at 139.

On the same day, on the BBC Radio 4 PM programme Jon Monel interviewed Lieutenant commander Barbara Burfeind at the Department of Defense in Washington:

BURFEIND: "We don't plan on er detaining em juveniles at Guantanamo further. Er I can't say in terms of the future of anywhere else".

JON MANEL: "Why not at Guantanamo anymore?"

BURFEIND: "Em, they just, I've just been told that they are not planning on having juveniles at Guantanamo."

This was false when Lt. Cdr. Burfeind made the statement, and it remains false today. There are apparently at least six juveniles in Guantanamo Bay. To the best of our information (although this is not confirmed), none of these children is being held in Camp Iguana, and we know that some are being held in Camp V, which is the most onerous of the camps, with treatment that is shameful for adults, let alone children.

As of September 2004, Jamison reported that,

The only confirmed detainee fitting into this category is Canadian Omar Khadr. Omar was 15 years old when American troops captured him on July 27, 2002, after an ambush on the troops. By October 31, 2002, the government had transferred him to Guantanamo, where they placed him in Camp Delta with the adult population. By that time, Khadr had turned 16.

Jamison, at 139 (footnotes omitted).

[1] CRC Article 1 defines "child," for the purposes of its protection, to mean "every human being below the age of 18 years;" This has been signed but is as yet ungratified by the U.S., apparently because until recently the U.S. executed children.

[2] See July 5, 2000, arts. 1-4, 6, 7, GA Res. 263, UN GAOR, 54[su'th'] Sess., Supp. 49, UN Doc. A/RES/54/263 [Optional Protocol to the CRC]. The United States ratified the Optional Protocol to the CRC on December 12, 2002, and it entered into force for the United States on January 23, 2003. The Optional Protocol to the CRC, in Articles 1-2, extends its protections to all children under the age of 18

[3] For example, the Beijing Rules state, "[a] juvenile is every person under the age of 18.” United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Similarly, the ICCPR Article 6(5) prohibits the death penalty for crimes committed when the offender was a juvenile under age 18.