USA v. Khadr - Defense Motion - For Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier (January 18, 2008)

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Defense Motion

For Dismissal Due to Lack of Jurisdiction
Under the MCA in Regard to Juvenile
Crimes of a Child Soldier

18 January 2008

1. Timeliness: This motion is filed within the timeframe established by Rule for Military Commissions (R.M.C.) 905 and the military judge’s 28 November 2007 scheduling order.

2. Relief Sought: The accused, Omar Khadr (Mr. Khadr), seeks an order dismissing all charges against him for lack of jurisdiction under the Military Commissions Act of 2006 (MCA or Act).

3. Facts: The factual allegations from the 2 February 2007 Charge Sheet (Attachment A) may be assumed to be true for purposes of this motion:

a. Mr. Khadr was born on September 19, 1986, in Toronto, Canada. (See Sworn Charge Sheet (2 Feb 2007) [hereinafter February Sworn Charges].).
b. Mr. Khadr was captured and detained by U.S. forces following a firefight at or near Khost, Afghanistan on July 27, 2002. Accordingly, Mr. Khadr was 15 years old at the time of the alleged conduct forming the basis for the charges in this case. (See id.)

4. Burden of Persuasion. Because this motion is jurisdictional in nature, the prosecution bears the burden of proving jurisdiction by a preponderance of the evidence. R.M.C. 905(c)(2)(B)

5. Law and Argument:

a. Introduction
(1) Omar Khadr, a Canadian national, was fifteen years old when he was captured in Afghanistan in July 2002. (See February Sworn Charges.) This military commission does not have jurisdiction to try Mr. Khadr, a child soldier, for crimes he allegedly committed when he was fifteen years old ecause Congress did not in the MCA grant military tribunals jurisdiction over juvenile crimes by child soldiers. The government, however, attempts to contort the MCA into a juvenile justice statute even though this military commission lacks the resources, skills or expertise required for such an exercise. To do this, the government must persuade this commission to ignore the pre-existing statutory plan adopted by Congress, 18 U.S.C. §§ 5031, et seq., which was neither amended nor repealed by the MCA, that Congress intended to govern the conduct of “any proceedings” against individuals such as Mr. Khadr and which provides a clear jurisdictional vehicle for the prosecution of Mr. Khadr for alleged crimes against the United States.
(2) Assuming, arguendo, the government’s allegations to be true, the illegal conduct of al Qaeda, a non-State armed terrorist group, in recruiting a juvenile under the age of eighteen and using him in combat is the critical starting point in the analysis of whether Congress intended military tribunals to have jurisdiction to try child soldiers like Mr. Khadr. As explained below, this use and abuse of a juvenile by al Qaeda is a violation of the law of nations which is reflected in the international treaty ratified by Congress in 2002, commonly known as the Optional Protocol to the Convention on the Involvement of Children in Armed Conflict (“Optional Protocol”), which sets forth the world community’s condemnation of the use of child soldiers.[1] See, e.g., Optional Protocol, art. 4 (“1. Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.”).
(3) Thus, and this is very important to the issue of military jurisdiction in the case, a juvenile illegally used in combat by al Qaeda does not have the requisite military status that has been historically necessary for military jurisdiction to be exercised. To now exercise military commission jurisdiction over an alleged al Qaeda child soldier and try him for alleged war crimes puts this commission in the very awkward position of legitimizing – contrary to the interest of the United States – the illegally imposed military status of an illegally recruited al Qaeda child fighter. This is certainly not what Congress intended when it granted jurisdiction to this commission to try al Qaeda’s war crimes against the United States.
(4) If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child. This unprecedented result need not be reached, however, because the Government cannot sustain its burden of establishing that Congress, through the MCA, granted jurisdiction to military commissions to try a defendant for war crimes and other statutory offenses allegedly committed when the defendant was a child. R.M.C. 905(c)(2)(B) (the burden of persuasion is on the prosecution “[i]n the case of a motion to dismiss for lack of jurisdiction”).
(5) Nothing in the MCA indicates a Congressional intent to disrupt the controlling body of existing law, described in the argument below, including military law and policy, international treaty obligations, and federal statutory law, which constrained military jurisdiction over juvenile crimes, and provided the government with a clearly defined avenue for juvenile

jurisdiction. The exercise of jurisdiction over a child soldier by a military tribunal such as this one, which has a complete lack of juvenile justice expertise and operates through a process which narrows or even eliminates important procedures protecting even an adult defendant’s trial rights, would be contrary to presumptive intent of Congress in passing the MCA. Congress expressed no intent to strip child offenders of their entitlement to heightened protection in all legal matters, particularly criminal prosecutions. The well-established presumption of statutory interpretation against repeal by implication applies with special force here, where Congress has not hesitated to specify, clearly and expressly, the preexisting laws that are overridden by the MCA. See, e.g., MCA § 4, 10 U.S.C. § 948b(d).

(6) A critical component of the response of our nation and the world to the tragedy of the use and abuse of child solders in war by terrorist organizations like al-Qaeda is that post-conflict legal proceedings must pursue the best interest of the victimized child with the aim of their rehabilitation and reintegration into society, not their imprisonment or execution. Despite

the fact that this principle of law was well-established by October 2006 when the MCA was adopted, and that many children including Mr. Khadr were being detained at Guantanamo at that time, Congress made no provision in the MCA to extend the jurisdiction of the military commissions to try child soldiers or, in what would have been a necessary corollary of any such jurisdiction, to equip the commissions with the array of procedural and remedial resources necessary to conduct proceedings in the best interest of the child and to foster their rehabilitation. In sum, the Government cannot sustain its burden of proving that the MCA granted jurisdiction to this commission to try alleged child soldier Mr. Khadr for his alleged juvenile crimes.

b. Longstanding Military Law, Which Was Not Abrogated By The MCA, Does Not Recognize Military Jurisdiction Over Crimes By Juveniles Who, Like Mr. Khadr, Have Not Acquired Lawful Military Status

(1) Neither the AUMF, DTA nor the MCA authorize personal jurisdiction over

juvenile offenders by military commission. This silence requires this commission to choose between two possible interpretations of these statutes: (i) there is no minimum age, be it fifteen or five years old, that a captured detainee must be in order to be tried by military commission; or (ii) Congress’ silence presupposes that the minimum age for personal jurisdiction was fixed the same way the military has for hundreds of years – that is, to the minimum age required for participation in hostilities and to join the military force on whose behalf he allegedly fought.

(2) Of direct relevance to the military judge’s jurisdiction here, courts-martial do not have jurisdiction over juvenile offenses. Though the Uniform Code of Military Justice (UCMJ) equally does not specify a minimum age for personal jurisdiction, the United States Court of Appeals for the Armed Forces has long held that a court-martial lacks jurisdiction over unlawfully recruited minors. See United States v. Brown, 23 C.M.A. 162 (1974); United States v. Blanton, 7 C.M.A. 664 (1957). As a general matter, and absent some explicit direction, Congress cannot be understood to have adopted a military tribunal system contrary to this well-established canon of military law. But that is especially true here, where Congress expressly made the UCMJ the model for military commissions convened pursuant to the MCA, see MCA § 3, 10 U.S.C. § 948b(c) (“The procedures for military commissions set forth in this chapter are

based upon the procedures for trial by general courts-martial under [the UCMJ]”), and specifically identified those provisions of the UCMJ that it did not wish to apply. See, e.g., MCA §§ 3, 4(a)(2); 10 U.S.C. §§ 821, 828, 848, 850, 904, 906, 948b(d). Rather than overturn this body of precedent interpreting the UCMJ, Congress expressly narrowed the class of persons over whom commissions convened pursuant to the MCA have personal jurisdiction from the wider class of persons subject to military tribunals convened under the UCMJ. MCA § 948d(b).

(3) In United States v. Blanton, 7 C.M.A. 664 (1957), the CAAF considered whether the enlistment of a person under the statutory age was void so as to preclude trial by court-martial. Looking to a long line of precedent, the CAAF held that “[a]n agreement to enlist in an armed service is often referred to as a contract. However, more than a contractual relationship is established. What is really created is a status.” Id. at 665. The CAAF held that when someone

is below the minimum age for enlistment, “a person is deemed incapable of changing his status to that of a member of the military establishment.” Id. at 666. Blanton had enlisted in the Army when he was not yet fifteen years of age and was charged with desertion. The court held that “at no time was he on active duty at an age when he was legally competent to serve in the military. In sum, the court-martial had no jurisdiction over the accused.” Id. at 667 (internal citation omitted). This holding was reaffirmed in United States v. Brown, 23 C.M.A. 162 (1974). There, the CAAF held that a defendant who enlisted at age sixteen was incompetent to acquire military status, and that the court-martial lacked personal jurisdiction over him even for a violent robbery committed at age seventeen.

(4) This limitation on military jurisdiction to cover only those who had the capacity to obtain a military status dates back to at least 1758, when the Kings Bench in England heard the petition of a minor who was charged with desertion before a court-martial. Rex v. Parkins, [1758] 2 Kenyon 295, 96 Eng. Rep. 1188. According to the case report, “The question was, whether he was to be considered as a soldier?” The Kings Bench held that because of his age,

his enlistment had been unlawful, he was not a soldier and thereby ordered him “out of the hands of the military.” In the United States, one sees the same refusal to subject minors to military jurisdiction throughout the Nineteenth Century. Webster v. Fox, 7 Pa. L.J. 227, 7 Pa. 336, 7 Barr. 336 (1847), provided factual circumstances nearly identical to Parkins and Blanton, prompting the court to release a minor “unlawfully enlisted and held without authority of law.” In Comm. v. Harrison, 11 Mass. 63 (1814), a Russian minor enlisted in our military and was ordered discharged because the military had “no legal claim to the custody or control of him.” These are but two examples of a long line of precedent where minors obtained release from military jurisdiction, even from conflict zones, at a time when the enlistment age was as high as 21 and no lower than 18. See In re McDonald, 1 Low. 100, 16 F. Cas. 33 (1866); In re Higgins, 16 Wis. 351 (1863); Dabb’s Case, 21 How. Pr. 68, 12 Abb. Pr. 113 (1861); Bamfield v. Abbot, 2 F.Cas. 577, 9 Law Rep. 510 (1847); Comm. v. Downes, 24 Pick. 227, 41 Mass. 227 (1836); Comm. v. Callan, 6 Binn. 255 (1814).

(5) Accordingly, no international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals. In fact, the current draft of the UN’s model rules for military tribunals stipulates that “In no case, therefore, should minors [under the age of 18] be placed under the jurisdiction of military courts.” Report submitted by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel Decaux, Issue of the administration of justice through military tribunals, UN Economic and Social Council, Commission on Human Rights, E/CN.4/2006/58 (13 January 2006), Principle 7. In the discussion of this proposed rule, the drafters conclude, “Only civilian courts would appear to be well placed to take into account all the requirements of the proper administration of justice in such circumstances, in keeping with the purposes of the [Convention on the Rights of the Child and its Optional Protocol on the Involvement of Children

in Armed Conflict]. The Committee on the Rights of the Child has adopted a very clear position of principle when making its concluding observations on country reports.” Id. at ¶ 28.

(6) The charges against Mr. Khadr stem from his alleged recruitment in violation of international law into al Qaeda to be a child soldier when he was fifteen years old and younger. As described below, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict prohibits any armed force from deploying anyone under the age of 18 into combat and forbids non-State armed groups, such as al Qaeda, from

utilizing children in any capacity. These are recognized as binding obligations by the U.S. military and DoD has, pursuant to them, forbidden the deployment of anyone under 18 from the U.S. armed forces into combat zones. See Michael Dominguez, Memorandum: Enforcement of Child Soldier Implementation Policies, Office of the Under Secretary of Defense, March 23, 2007.2 Thus, Mr. Khadr, like the minors in Blanton and Brown, and child soldiers throughout modern military history, was incompetent as a matter of law to acquire a military status, and this military commission lacks jurisdiction over him for the crimes he allegedly committed as a child.

(7) The reason minors are incapable of obtaining a military status, even voluntarily, is

as based in common sense as it is military history. Whereas in daily civilian life, we would anticipate the average child’s basic sense of right and wrong to prevent them from breaking laws that prohibit destroying property, stealing or committing homicide; in warfare, this conduct is not only acceptable but rewarded. Moreover, children can’t be expected to understand the law of armed conflict. The laws of war require a degree of maturity and sophistication that children simply cannot be expected to have. This is especially so with respect to the war crimes Mr. Khadr is alleged to have committed, where alleged criminality derives not from wanton cruelty or violence against protected persons, but from a failure to wear a uniform and the illegitimate status of the military force on whose behalf he allegedly fought.

(8) As was reported in a study by the Marine Corps’ Center for Emerging Threats and

Opportunities, child soldiers “do not respect the laws of war or follow any specific rules of engagement,” since “children do not even know what these things are.” See CETO, Child Soldiers: Implications for U.S. Forces 19 (CETO Seminar Report 005-02, November 2002). In such situations, the only right and wrong a child understands are obedience and disobedience to the authorities controlling them. Indeed, it is this very blind obedience that makes child soldiers a useful weapon to exploit; or in the words of one Khmer Rouge officer, “It usually takes a little time but eventually the younger ones become the most efficient soldiers of them all.” Geraldine Van Bueren, The International Legal Protection of Children in Armed Conflicts, 43 Int’l & 2 “The Department learned recently that some Service members younger than 18 have been deployed in support of operations in Iraq and Afghanistan. This of course would contravene Article 1 of the Child Soldiers Protocol Letters which essentially requires that Parties (including the United States), ‘take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.’” Michael Dominguez, Memorandum: Enforcement of Child Soldier Implementation Policies, Office of the Under Secretary of Defense, March 23, 2007. Comp. L.Q. 809, 813 (1994); see also Human Rights Watch, Easy Prey: Child Soldiers in Liberia 23 (HRW 1994) (“The children don’t question their orders; they act out of blind obedience”).

(9) Both internationally, domestically and from our nation’s highest military court, military trials – whether by court-martial or ad hoc commission – are adult proceedings that presume defendants had the capacity to take on the special status that subjects them to military jurisdiction, whether as members of the “military establishment” or as “enemy combatants.”

There is no indication that Congress intended to disturb that precedent, and to delineate the personal jurisdiction of MCA commissions in a manner inconsistently with well-established military law.3 “Where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard, Div. of Loewe’s Theaters, Inc. v. Pons, 434 U.S. 575, 581 (1978); see also, e.g., Whitfield v. United States, 543 U.S. 209 (2005). Congress knew that under the UCMJ courts-martial have no jurisdiction over minors. But an age limit is not among the features of the UCMJ that Congress singled out as inapplicable to military tribunals under the MCA. There is no indication that Congress ever contemplated giving this commission jurisdiction where other military courts would be without. Thus, the Government cannot sustain its burden of proving that this commission has jurisdiction over Mr. Khadr for his alleged war crimes as a child soldier. c. The MCA Should Be Interpreted As Not Granting Jurisdiction To The Military Commissions To Try And Imprison Or Execute Child Soldiers Because The MCA Does Not Abrogate Or Alter Pre-Existing Treaty Obligations Of The U.S. Toward Captured Child Soldiers (1) The World Community, Including The United Sates, Responds to The Tragedy Of Child Soldiers Through A Treaty To Protect Child Soldiers (i) The growing participation of child soldiers in armed conflicts around the world

has been condemned by the world community and has led to the worldwide legal development aimed at protecting these children and stopping this scandal. See Peter W. Singer, “Caution: Children at War,” Parameters, Winter 2001-02, pp. 40-56. Although the stereotype of the child soldier is the pre-adolescent African boy toting an AK-47, the reality is that children throughout the world are being drawn into armed conflict by groups ranging from national military forces to terrorist organizations such as al Qaeda. According to the Coalition to Stop the Use of Child Soldiers, in the period between 1999 and 2001 children were fighting in some thirty countries, and children in more than eighty-five counties have been conscripted into everything from

3 Military policy accords special status to minors in other respects as well. For instance, minors are included in a specially protected class of detainees (along with religious figures and women) who are accorded special “dignity and respect” and must be housed separately from adult male detainees. See First Marine Division, Detainee Handling and Detention Facility SOP §§ 1(c)(3)(a), 2(c)(4) (Oct. 1, 2004). Similarly, United States policy in Afghanistan condemns the use of “child soldiers,” conditioning support for the Afghan army on prohibition of the use of child soldiers or combatants. Afghanistan Freedom Support Act of 2002, Pub. L. No. 107-327, 116 Stat. 2797 (Dec. 4, 2002).


� governmental armed forces, paramilitaries, and civil militia to a wide variety of non-state armed groups of insurgents and terrorists.4

(ii) Children are particularly vulnerable to recruitment into armed conflicts waged by outlaw and terrorist groups organizations, such as al Qaeda, because children are more docile than adults and are easily manipulated. “They are also more fearless, being less able to assess the risks of combat and lacking the strong streak of self-preservation adults have. A relief worker in Liberia commented: ‘I think they [the warring factions] use kids because the kids don’t understand the risk and children are easier to control and manipulate. If the commanding officer tells a child to do something, he does it.’”5 Terrorist groups in particular are able to manipulate adolescent children into the horrors of war because the “lure of ideology is particularly strong in early adolescence” with often disastrous consequences such as the child genocidaires in Rwanda and the child suicide bombers in Lebanon and Sri Lanka.6 (iii) The world’s condemnation of the use of child soldiers resulted in the treaty entitled the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict which was adopted by the General Assembly of the United Nations and opened for signature, ratification, and accession on May 25, 2000. The United States deposited its instrument of ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, G.A. Res. 54/263, U.N. Doc. A/RES/54/263 (May 25, 2000), entered into force Feb. 12, 2002) (“Optional Protocol”), with the United Nations on December 23, 2002, and the treaty went into effect for the United States on January 23, 2003. The Optional Protocol not only prohibits the recruitment of children into armed conflict, it also places obligations on State Parties, such as the United States, which take child soldiers into custody. Article 7 of the Optional Protocol, for example, imposes the following obligation on states parties: 4 Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001. Although the drastic spike in child soldiers globally has captured the attention of many, the problem is hardly recent. Tens of thousands participated in the “Children’s Crusade” of 1212, and Napoleon had a division of young boys in his army. Afua Twum-Danso, Africa’s Young Soldiers: The Co-option of Childhood 17 (2003). During World War II, Nazis employed child fighters to carry out underground missions on a large scale. See Sarah L. Wells, Crimes Against Children in Armed Conflict Situations: Application and Limits of International Humanitarian Law, 12 Tul. J. Int’l & Comp. L. 287, 290 (2005). After the war, the British established “Small Boys Units” in various colonies, including Sierra Leone. See William A. Schabas, Conjoined Twins of Transitional Justice? The Sierra Leone Trust and Reconciliation Committee and the Special Court, 2 J. Int’l Crim. Just. 1082, 1087 (2004). By the 1980s, national armies and non-national armied groups all over the world freely used and recruited children; Iran and Cambodia are a few of many examples. See, e.g., Geraldine Van Bueren, International Law on the Rights of the Child 336 (1999); George Kent, Children in the International Political Economy 85 (1995). The Iranian Minister of Education claimed that 150,000 children “volunteered” to fight for the Iranian army, 60% of all recruits. See Kent, supra, at 85. Due to the rapid expansion of this practice after the Cold War, the last fifteen years have come to be known as the “era of the child soldier,” and this has led to the world community’s adoption of a legal regime to protect child soldiers. Tum-Danso, supra, at 17.

5 M. Happold, Child Soldiers In International Law 10 (2005).

6 The Secretary-General, Promotion and Protection of the Rights of children: Impact of Armed Conflict on Children, ¶ 43, U.N. Doc. A/51/306 (1996) (prepared by Ms. Garça Machel).


� States Parties shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary to the Protocol and in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with concerned States Parties concerned and the relevant international organizations. (Emphasis added.)

Given its obligation to work to rehabilitate and socially reintegrate Mr. Khadr, classification of Mr. Khadr as an “unlawful enemy combatant” who will be tried for alleged war crimes committed when he was a child soldier of 15 years of age is manifestly inconsistent with the requirement of operating in the best interest of the child’s restoration (“[T]he best interests of the child are to be a primary consideration in all actions concerning children . . ..” Preamble to the Optional Protocol, cl. 8).

(2) Mr. Khadr, A Fifteen-Year-Old Child Soldier Of A Non-State Armed Group, Is Protected By The Provisions Of The Optional Protocol (i) Article 1 of the Optional Protocol forbids States Parties from recruiting persons under the age of eighteen for use in hostilities. Article 4 extends this prohibition to “[a]rmed groups that are distinct from the armed forces of a State.” Article 3 allows a State Party such as the United States to recruit persons under eighteen for non-combat roles when: (1) the recruitment is “genuinely voluntary”; (2) it is done with the consent of the recruit’s parent or legal guardian; (3) the recruit is fully informed of the duties of military service; and (4) the recruit provided reliable proof of age prior to acceptance into the national military. There is no such exception, however, for armed groups such as al Qaeda that are distinct from the armed forces of the state. All members of a non-state armed group must be at least eighteen years of age for them to be a combatant of any kind, either lawful or unlawful. Optional Protocol, art. 4. (ii) This interpretation was made clear in the discussions leading up to the ratification of the Optional Protocol. In a hearing before the Senate Foreign Relations Committee, the Deputy Assistant Secretary of State for International Organizations explained that Article 4 “creates a standard, which is readily understandable, that 18 is the breakpoint for these non-state actors . . . . And with a clear standard, replacing what has been kind of murky out there, it is easy for civil society [and] governments . . . to put the spotlight on what those practices are.” Hearing on Protocols on Child Soldiers and Sale of Children (Treaty Doc. 106–37) before the Sen. Foreign Relations Comm., 107th Cong. (2002) (Annex to S. Exec. Rep. 107-4 at 53-54) (2002) (statement of E. Michael Southwick, State Dep’t). In ratifying the Optional Protocol, the United States did so with the understanding that “the term ‘armed groups’ in Article 4 of the Protocol means non-governmental armed groups such as rebel groups, dissident armed forces, and other insurgent groups.” United States, Initial Report of the United States of America to the UN Committee on the Rights of the Child Concerning the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Initial Report), art. 4, ¶ 28, U.N. Doc. CRC/C/OPAC/USA/1 (2007). Further, clause eleven of the preamble to the Optional Protocol specifically condemns “with the gravest concern the recruitment, training, and use within and across national borders of children in hostilities by armed groups distinct from the


� armed forces of a State . . . .” That same clause goes on to recognize the “responsibility of those who recruit, train, and use children in this regard . . . .”

(iii) In drafting the Optional Protocol, most delegates “believed that the protocol should reflect the reality of the situation in the world today, where most armed conflicts take place within States and most under-age combatants serve in non-governmental armed groups.” U.N. Econ. & Soc. Council [ECOSOC], Comm. on Human Rights, Report of the Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts, ¶ 32, U.N. Doc. E/CN.4/1998/102 (Mar. 23, 1998). The sixth clause in the Optional Protocol’s preamble recognizes these realities of the world by noting that “there is a need to increase the protection of children from involvement in armed conflict . . . .” The phrase “armed conflict” in the Optional Protocol is not modified or limited by such terms as international or non-international. Further, the inclusion in Article 4 of non-state armed groups leads to the logical conclusion that the Optional Protocol is meant to apply to all armed conflicts, and all parties involved in them. (iv) Clause eight of the Optional Protocol’s preamble states that “the best interests of the child are to be a primary consideration in all actions concerning children . . . .” This clause, taken in conjunction with the clause discussed in the previous paragraph, further indicates that the Optional Protocol was meant to apply to all persons under the age of eighteen – whether recruited into national or other non-state armed forces, such as al Qaeda. (v) The United States has endorsed the application of Article 4 to child soldiers used by al Qaeda. In its initial report to the Committee, the United States documented the aid work it undertook under the Optional Protocol. In Afghanistan, the United States provided educational support for former child soldiers. Initial Report, art. 7, ¶ 35. In this report, the United States stated that it applies the Cape Town Principles7 in determining who is a child soldier. Id. at ¶ 34. The report characterizes this program as involving “underage former soldiers.” Id. at ¶ 36. This program demonstrates both that: (1) the United States views providing support to former child soldiers as a necessary component of its duties under the Optional Protocol; and (2) this duty extends to those former child soldiers used by al Qaeda during the conflict in Afghanistan. (vi) Although Mr. Khadr is no longer under the age of eighteen, this fact is irrelevant in determining the government’s obligations under the Optional Protocol. Article 6(3) applies to individuals who were “used in hostilities contrary to this Protocol.” (Emphasis added). Hence, the only age that is relevant in determining U.S. obligations under the Protocol is Mr. Khadr’s age when he was “used” in armed conflict as a fifteen-year-old. Because Mr. Khadr is in the custody of the United States, and because he was used in hostilities by a non-state armed group The Cape Town Principles are the end product of a symposium which was organized by UNICEF and the NGO working group on the Convention on the Rights of the Child, and held in April 1997. According to the Cape Town Principles, a “child soldier” is “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members.” UNICEF, Cape Town Annotated Principles and Best Practices on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa (April 1997), available at


� before the age of eighteen, the United States, pursuant to Article 7, must take necessary steps to aid in his rehabilitation and social reintegration.

(3) Mr. Khadr’s Trial By Military Commission Contradicts U.S. Obligations Under The Optional Protocol To Aid In His Rehabilitation And Social Integration (i) Article 6(3) of the Optional Protocol requires that States Parties take “all feasible measures to ensure that persons within their jurisdiction . . . used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.” Further, Article 7 requires States Parties to “cooperate in the implementation of the present Protocol, including . . . in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol . . . .” Hence, the U.S. Government must take “all feasible measures” to ensure that Mr. Khadr is demobilized or released from service. To this end, the government must take the necessary steps to aid in Mr. Khadr’s “rehabilitation and social reintegration.” Any action taken by the U.S. Government after the capture and demobilization of a child soldier like Mr. Khadr must comply with the “best interests of the child” principle. Preamble to the Optional Protocol, cl. 8. The criminal prosecution of Mr. Khadr by a military tribunal under the terms and conditions of the MCA is completely inconsistent with these obligations. (ii) Rather than operating in the best interest of the child with procedural safeguards to protect the child, the military trials of the MCA in fact curtail or eliminate important safeguards which would otherwise apply even in the prosecution of adult defendants in a court- martial under the UCMJ. See, e.g., MCA §§ 948b(d)(A)-(C), 949a(b)(2)(E), 950(b)-(g). They even allow the admission of evidence which was coerced from the defendant himself or from others. MCA § 3, 10 U.S.C. 948r(c), (d). Such truncated procedures are at odds with the minimum safeguards that would have to be present in a prosecution conducted in the best interest of the child. (iii) The MCA also makes no provision for any of the resources that would be necessary for a military tribunal to carry out the obligation of the United States Government to rehabilitate a captured child soldier, as required by the Optional Protocol. It did not provide, for example, for the imposition, or the resources to carry out, any of the following: care guidance and supervision orders, community service orders, counseling, foster care, correctional, educational, and vocational training programs, approved schools, programs of demobilization and reintegration into society through child protection agencies. (iv) In drafting the Optional Protocol, the United States declared that the “recruitment and use [of child soldiers] by non-State actors, the need for international cooperation in their rehabilitation and reintegration, and the establishment of an effective mechanism for international scrutiny of the implementation by States of their obligations with respect to children in armed conflict” were the “real problems” that the Optional Protocol was meant to address. ECOSOC, Comm. on Human Rights, Inter-Sessional Open-Ended Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child in Armed Conflicts, U.N. Doc. E/CN.4/2000/WG.13/2/Add.1 ¶ 10 (Dec. 8, 1999). In determining whether Mr. Khadr’s trial by military commission is appropriate, it is necessary to consider the importance placed on 10

� “rehabilitation and reintegration” by the international community generally, and the United States specifically.

(v) The Committee on the Rights of the Child has recommended that child soldiers never be tried by military tribunal.8 Concluding Observations of the Committee on the Rights of the Child, Congo, ¶ 75, U.N. Doc. CRC/C/15/Add.153 (2001). In addition, as stated previously, clause eight of the Optional Protocol’s preamble states that “the best interests of the child are to be a primary consideration in all actions concerning children.” The Committee has further elucidated this principle to require “active measures throughout Government, parliament, and the judiciary. Every legislative, administrative, and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions . . . .” Committee on the Rights of the Child, General Comment No. 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), § 1, ¶ 12, U.N. Doc. CRC/GC/2003/5 (2003).

(4) The MCA Should Be Interpreted In Light Of These U.S. Treaty Obligations In The Optional Protocol To Exclude Mr. Khadr From The Jurisdiction Of The Military Commission (i) When President George W. Bush signed the MCA, it was with the specific understanding that the Act “[c]omplie[d] with both the spirit and the letter of our international obligations.” White House Fact Sheet: The Military Commissions Act of 2006 (Oct. 17, 2006).9 The Optional Protocol is, as noted above, a treaty to which the United States is a party and which sets forth specific obligations of the United States with respect to the treatment of child soldiers such as Mr. Khadr. The Optional Protocol, as a treaty entered into by the United States, is the “supreme law of the land” and has Constitutional parity with any federal law. U.S. Const. art. VI, cl. 2. As stated above, DoD deems it controlling on military policy. Moreover, it is a well- settled rule that courts should endeavor to construe a treaty and a statute on the same subject so as to give effect to both. Whitney v. Robertson, 124 U.S. 190, 194 (1888); see also Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains . . . .”). Courts generally should construe a treaty “in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.” Asakura v. City of Seattle, 265 U.S. 332, 342 (1924). (ii) There is absolutely no indication that Congress intended in any way to abrogate or limit the international obligations of the United States under the Optional Protocol when 8 The Committee on the Rights of the Child (“Committee”) is the authoritative body charged with the interpretation and application of the Optional Protocol, and its observations are therefore relevant in determining whether groups like al Qaeda should be considered non-state armed groups under Article 4 of the Optional Protocol. See Vienna Convention on the Law of Treaties, art. 31(3)(b), 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force January 27, 1980. For example, the Committee has found that child combatants were protected by the Optional Protocol, even when they were recruited by “illegal armed groups for combat purposes.” Concluding Observations of the Committee on the Rights of the Child, Colombia, ¶ 80, U.N. Doc. CRC/C/COL/CO/3 (2006).

9 Available at


� Congress passed the MCA. In Cook v. United States, 288 U.S. 102, 120 (1933), the Supreme Court could find no mention of the relevant treaty in the statutory language or the legislative history of a subsequent statute they were construing, and the Court stated, “[a] treaty will not be deemed to have been abrogated or modified by a later statute, unless such purpose on the part of Congress has been clearly expressed.” Id. (citing United States v. Payne, 264 U.S. 446, 448 (1924); Chew Heong v. United States, 112 U.S. 536 (1884)). Interpretation of a statute, such as the MCA, so as to give effect to both the treaty and the statute is analogous to the “cardinal rule [for interpreting two statutes] . . . that repeals by implication are not favored.” Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936). Given the fact that this military prosecution, which lacks any of the rehabilitative functions of a juvenile justice system, would violate, in the words of President Bush, “both the spirit and the letter of our international obligations” under the Optional Protocol, the MCA should be interpreted to exclude Mr. Khadr from the jurisdiction of the military tribunal because Congress did not abrogate or modify the treaty obligations of the Optional Protocol.

(iii) The penal remedies for the war crimes and statutory offenses of the MCA are also inconsistent with the Optional Protocol’s obligation to pursue only restorative justice and rehabilitation of the child soldier. For example, if Congress had intended for the MCA to apply to juveniles, it would have explicitly prohibited the imposition of the juvenile death penalty given that the Supreme Court of the United States struck down the juvenile death penalty as cruel and unusual punishment only one year prior to the enactment of the MCA. Roper v. Simmons, 543 U.S. 551 (2005). The fact that the MCA does not mention juveniles at all, even in the provisions that provide for the imposition of the death penalty, makes abundantly clear that Congress did not intend for juveniles to be tried by these military commissions. (iv) There is nothing preventing Congress, if it desires to try former child soldiers as war criminals, from explicitly laying out the necessary groundwork for doing so, as the U.S. did in the drafting of the UN Special Court for Sierra Leone. U.N. Doc. S/RES/1315 (Aug. 14, 2000) at Arts. 7(1)-7(2).10 It is for Congress to make that choice, not trial counsel. The military judge only preserves the integrity of these proceedings by giving effect to what Congress said, not what trial counsel wishes it had said. The Government simply has no basis for demonstrating Congress’ intent to the contrary and therefore fails to meet its burden of proving that this military commission has jurisdiction over Mr. Khadr. 10 Compare, for example, the statute of the Special Court for Sierra Leone, adopted by the United Nations in 2000, which specifically granted the international tribunal jurisdiction over children between the ages of fifteen and eighteen but which, in order to carry out proceedings that would be in the best interests of the child: (a) provided a wide range of resources to the court so that it could conduct a juvenile justice proceeding in the best interest of the child soldier such as care, guidance, and supervision orders and rehabilitation options, and (b) excluded imprisonment for juvenile offenders convicted under the Statute.

U.N. Doc. S/RES/1315 (Aug. 14, 2000) at Arts. 7(1)-7(2). Even with these safeguards in place, the Special Court’s Prosecutor announced that he did not intend to charge anyone for crimes committed while they were under the age of eighteen and no such charges have been brought. See Special Court for Sierra Leone Public Affairs, “Special Court Prosecutor Says He Will Not Prosecute Children” (Nov. 2, 2002) available at 12

� d. The MCA Did Not Override The Juvenile Delinquency Act Which Continues To Govern In The Prosecution Of Juvenile Crimes (1) In enacting the MCA, Congress provided no indication that it intended to abrogate the extensive statutory framework that governs the prosecution of juvenile offenses by the federal government. See Juvenile Delinquency Act (“JDA”), 18 U.S.C. §§ 5031, et seq. There is no reason to believe that Congress intended the MCA to have the effect of diverting minors such as Mr. Khadr to military tribunals, rather than the procedures set forth in the JDA – particularly in the face of long-standing military law and policy conferring special status on minors and precluding court-martial jurisdiction over them. (2) “The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.” Roper, 543 U.S. at 574. Consistent with this understanding, Congress, in the JDA, established specific and carefully considered procedures for the federal detention and prosecution of persons under the age of 18. The charges referred against Mr. Khadr, though doubtful as war crimes, do allege federal crimes, such as murder (see 18 U.S.C. § 1114) and conspiracy (see 18 U.S.C. § 1117), that are cognizable in a prosecution under the JDA, which creates a broad statutory basis for prosecuting any “violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” 18 U.S.C. § 5031 (2000). (3) Most important here, the JDA provides juveniles with a statutory right not to be tried as criminal defendants outside of its terms. See JDA, 18 U.S.C. §§ 5031, et seq.; In re Sealed Case, 893 F.2d 363, 367-68 (D.C. Cir. 1990). Where the JDA applies, as here, the Attorney General is required to issue a certification as to the propriety of a federal forum. 18 U.S.C. § 5032 (2000). Absent that certification or delivery of the juvenile to state authorities, “any proceedings against him shall be in an appropriate district court of the United States.” (4) The JDA governs the federal prosecution of juveniles in the military context as well. The JDA is routinely invoked when juveniles are taken into federal custody in situations where there is no concurrent state jurisdiction – such as on foreign territory or a military base. See 18 U.S.C. § 5032, para. 1. See also United States v. R. L. C., 503 U.S. 291 (1992) (juvenile held on Indian territory); United States v. Jose D. L., 453 F.3d 1115 (9th Cir. 2006) (alien juvenile caught at border crossing); United States v. Male Juvenile, 280 F.3d 1008 (9th Cir. 2002) (juvenile held on Indian territory); United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir. 2000) (alien juvenile caught at border crossing); United States v. Female Juvenile, 103 F.3d 14 (5th Cir. 1996) (juvenile held on military base); United States v. Juvenile Male, 939 F.2d 321 (6th Cir. 1991) (juvenile held on military base). Hence, the fact that Mr. Khadr was seized in Afghanistan and is detained at Guantánamo Bay does not exclude him from the scope of the act. (5) Within the military, the JDA is understood as applying to the prosecution of anyone under eighteen who is not a member of U.S. forces and commits a criminal act overseas. See International and Operational Law Department, The Judge Advocate General’s Legal Center and School, Operational Law Handbook, JA 422, 139 (2006). And because the JDA also “draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.” Rasul v. Bush, 542 U.S. 466, 481 (2004). In fact, the JDA’s provisions 13

� are recognized as applying equally to both legal and illegal aliens prosecuted for criminal conduct committed before the age of eighteen. See United States v. C.M., 485 F.3d 492 (9th Cir. 2007); United States v. Jose D. L., 453 F.3d 1115 (9th Cir. 2006); United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir. 2000); United States v. Juvenile Male, 74 F.3d 526 (4th Cir. 1996); United States v. Doe, 862 F.2d 776, 799 (9th Cir. 1988); United States v. Doe, 701 F.2d 819 (9th Cir. 1983).

(6) The MCA neither expressly abrogates the JDA, nor provides any indication that Congress intended to override the specific statutory framework designed to prosecute juveniles who commit these offenses. Accordingly, the best reading of the entire statutory framework is that the JDA has not been repealed by implication, but instead continues to govern in the specific area of prosecution of juvenile offenses. See Branch v. Smith, 538 U.S. 254, 273 (2003) (“[A]bsent ‘a clearly established congressional intention repeals by implication are not favored.’ An implied repeal will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’”) (internal citations omitted). As noted already, the well-established presumption against repeal by implication applies with special force here, where Congress has not hesitated to specify, clearly and expressly, the preexisting procedures that are overridden by the MCA. See, e.g., MCA § 4, 10 U.S.C. § 948b. The Government cannot present any reason why the specific legislative mandates of the JDA were supplanted sub silento by the MCA and therefore cannot meet its burden of proving that the MCA granted jurisdiction to the military commission to try Mr. Khadr for alleged child crimes. e. Conclusion (1) The Government cannot meet its burden of proving that this military commission has jurisdiction over Mr. Khadr for the crimes he allegedly committed as a child soldier at age fifteen. Congress did not equip this military commission with any of the resources, expertise, or remedial alternatives that would be necessary for a juvenile justice system to operate, as it must, in the best interest of the child to rehabilitate and restore him. The MCA does not vest such juvenile jurisdiction in this commission, and the principles of statutory interpretation compel the conclusion that when it passed the MCA Congress did not abrogate or repeal by implication the preexisting law and policy, including longstanding military law and policy, treaty obligations and federal statutory law, which is in conflict with the exercise of jurisdiction by this military tribunal over Mr. Khadr for his alleged crimes as a child soldier. 6. Oral Argument: The Defense requests oral argument as it is entitled to pursuant to R.M.C. 905(h) (“Upon request, either party is entitled to an R.M.C. 803 session to present oral argument or have evidentiary hearing concerning the disposition of written motions.”). Oral argument will allow for thorough consideration of the issues as well as assist the commission in understanding and resolving the complex legal issues presented by this motion. 7. Witnesses and Evidence: a. Sworn Charge Sheet (2 Feb 2007) 14

� 8. Certificate of Conference: The Defense has conferred with the Prosecution regarding the requested relief. The Prosecution objects to the requested relief. 9. Additional Information: In making this motion, or any other motion, Mr. Khadr does not waive any of his objections to the jurisdiction, legitimacy, and/or authority of this Military Commission to charge him, try him, and/or adjudicate any aspect of his conduct or detention. Nor does he waive his rights to pursue any and all of his rights and remedies in and all appropriate forms. 10. Attachment: A. Sworn Charge Sheet (2 Feb 2007) By: _____________________

William Kuebler
Detailed Defense Counsel
Rebecca S. Snyder
Assistant Detailed Defense Counsel

Original Footnotes[edit]

  1. Peter W. Singer, Director of the 21st Century Defense Initiative at Brookings, summarized the international prohibitions on the use of child soldiers as follows: “The recruitment and use of child soldiers is one of the most flagrant violations of international norms. Besides being contrary to the general constructs of the last four millennia of warfare, the practice is prohibited by a number of relevant treaties codified in international law. At the international level, these include the 1945 Universal Declaration of Human Rights, the Geneva Conventions of 1949, and the 1977 Additional Protocols to the Geneva Conventions. The UN Security Council, the UN General Assembly, the UN Commission on Human Rights, and the International Labor Organization are among the international bodies that have condemned the practice, not to mention the global grassroots effort of the nongovernmental sort. At the regional level, the Organization for African Unity, the Economic Community of West African States, the Organization of American States, the Organization for Security and Cooperation in Europe, and the European Parliament have also denounced the use of child soldiers. However, these conventions are extensively ignored and, instead, the presence of child soldiers on the battlefield has become a widespread practice at the turn of the century.” Peter W. Singer, “Caution: Children at War,” Parameters, Winter 2001-02, pp. 40-56.