Victor Hansen

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« Khadr's Counsel Challenge | Main | Khadr charges dismissed for want of jurisdiction - possibly in error? [updated - twice] »

June 04, 2007


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.


I guess that to receive the loan from banks you ought to have a firm motivation. But, one time I've received a bank loan, because I wanted to buy a bike.

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