Attempts to Prosecute the Child Foot Soldiers of Al Qaeda Demonstrate the Failures of Guantanamo and the U.S. Military Commissions

Because of his age (15 years old) at the time of the charged offenses, Omar Khadr’s case not only raises interesting issues about his rights to counsel, it also raises troubling issues about the jurisdiction and overall purpose of the military commissions being conducted at Guantanimo.  In a recent New York Times article on Khadr, some legal experts opined that prosecution of Khadr may violate international agreements that require special treatment of children caught in warfare.  Not surprisingly, the Justice Department and the Chief Prosecutor for the military commissions dispute the applicability of these agreements to the tribunals at Guntanamo.

What cannot be disputed, however, is that under the UCMJ the military would have no jurisdiction to court-martial someone who was 15 at the time he committed an alleged criminal offense.  In order for jurisdiction to attach under the UCMJ the solider must be at least 17 year old for any enlistment to be valid.  The reason for this minimum age requirement is obvious:  children under this age lack the legal capacity to completely understand the full and legal consequences of their actions. 

Even if a child knowingly went down the recruiting office and knowingly presented fraudulent papers in order to enlist, the enlistment would have no legal efficacy.  This jurisdictional requirement is more than a well meaning and worthy notion: We understand as a society that it would be unfair and unjust to subject such a child to court-martial jurisdiction because the child simply lacks the legal capacity to make this kind of decision.  The United States Supreme Court confirmed this proposition as a matter of policy in the Roper case, wherein it held unconstitutional the death penalty for defendants who were under the age of 17 when they committed the crime charged.

Why, then, is Omar Khadr’s situation different?  Are we to assume that because he may be a member of Al Qaeda, he has a greater degree of legal capacity? Are we to assume that children caught up on the battlefield in the war on terror have more choices and options and thus, their decision to join Al Qaeda is more knowing and more likely to be a product of free will then the 16 year-old American who walks into a recruiter’s office with fraudulent enlistment documents?  Or, is the decision to try Omar Khadr by military commission for alleged conduct that he engaged in at 15 simply based on the notion that because of what he did and who he associated with, and because of his family ties, he does not deserve certain basic rights and legal protections? 

This also raises another troubling question that we have been struggling with for quite sometime.  Even assuming that Omar Khadr did in fact throw a grenade at U.S. forces during a firefight in Afghanistan, he clearly does not fit into the category of the “worst of the worst” that the administration claims are being detained and prosecuted at Guantanamo.  At most, he was a 15 year-old foot solder doing the bidding of much more dangerous and culpable terrorists.  Anyone familiar with prosecuting organized crime or other criminal networks knows that it is generally a waste of time and resources to prosecute the foot soldiers.  Instead, efforts are made to “turn” the foot soldiers so that the higher-level leaders of the criminal organization can be discovered and prosecuted.

Why, then is the U.S. spending time, effort and resources, and squandering what little international goodwill it may still enjoy on prosecuting a 15 year-old alleged foot soldier of Al Qaeda? Why weren’t these foot soldiers “turned” and used to go after mid-level and senior members of Al Qaeda? Was it because the aggressive interrogation techniques used at Guantanamo failed to produce the actionable intelligence that the U.S. was hoping for? It seems to us that this prosecution of Omar Khadr is really emblematic of the complete failure of Guantanamo and the military commissions system.  While many of the “worst of the worst” remain at large, the U.S. seeks to prosecute a child by military commission who, if he were an American citizen would not be subject to courts-martial jurisdiction because of his age.

This kind of prosecutorial decision highlights as well the consequence of an unfettered grant of authority to the executive in matters involving national security and terrorism.  The lack of effective habeas review means that many policy decisions will go essentially unexamined, and that means that Americans will not be able to hold accountable the civilian leaders who have pursued policies that, at this point, seem to spring more from desperation than design.  At a minimum, such decisions will do nothing to improve the credibility or legality of the military commissions system.

Vic Hansen & Lawrence Friedman

Comments

[Bobby Chesney]

Two questions for you:

1. I assume you would agree that it would not be all that unusual for a 15-year-old to be prosecuted as an adult on murder charges in a civilian criminal process. Can you elaborate on why this doesn't change your analysis?

2. Let's assume for the sake of argument that Khadr did precisely what he has been accussed of doing. Would you agree that he can properly be detained for the duration of the conflict in Afghanistan (if not also for the duration of the conflict with al Qaeda), even if he cannot properly be prosecuted?

[Vic Hansen]

1. As to your first question, it may not be all that unusual for a 15 year-old to be tried as an adult in say a state or federal court. In order for that to occur, however, a predicate determination must be made that it is appropriate to try the juvenile as an adult. Included with that predicate showing is the recognition that in many cases juveniles should not be treated as adults and the criminal justice system is not the appropriate forum. Of course no such process is available under the MCA and thus there is not even any acknowledgment that a military tribunal may not the appropriate forum to try child soldiers. In addition, under the MCA the child soldier is not even afforded the basic rights that an adult would receive in a criminal trial, thus the unfairness of trying children under the MCA is further compounded. I would certainly submit that a better way to try someone like Omar Khadr would be in a criminal trial, but that is a very different process then the trial he would face under the MCA.

2. I think detaining suspects in Guantanamo for the duration of hostilities without granting them the kinds of protections afforded to prisoners of war is problematic. When that indefinite detention is applied to child soldiers, I think if simply highlights the problem. Are there no better alternatives, particularly with child soldiers? Would it not be better to recognize them also as victims of war, as is done by other international tribunals, such as Sierra Leone?

[Dustin Greene]

I would agree that, in many cases, juveniles should not be tried as adults. But given that even our domestic criminal system acknowledges that some 15 year olds are capable of committing "adult" offenses shouldn't the reality that such younger fighters exist be incorporated into the tribunal process instead of just ignoring it? Of course such prosecutions should be exceedingly rare, and out of the thousands of fighters detained in Afghanistan and Iraq, Khadr is the only such prosecution that I am aware of.
I would also respectfully dispute the idea that the UCMJ's jurisdictional age limit of 17 is any sort of hard and fast judgment on when a soldier begins to understand the consequences of his actions. Like all age restrictions this is a somewhat arbitrary line and probably errs towards the safer, upper end of the spectrum. It is my understanding that as recently as WWII the US military enlisted soldiers as young as 16. Please correct me if I am misinformed.