Prosecuting Children For War Crimes

June 5, 2007 at 3:55 pm | Posted in American politics, Bush Administration, conservatives, corruption, Evangelicals, Foreign Policy, Gitmo, Mit Romney, Mitt Romney, neo-conservatives, Republicans, secret combinations, Torture, War, War on Terror | 2 Comments

Just to show how utterly devoid of morality and ethics the whole situation at Guantanamo Bay is (and to show how stupid Mitt “Double Guantanamo” Romney really is), read the following analysis of the recent case against Omar Khadr, age 15 when taken by the Americans and placed in Cuba.

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.

Mr. Hansen and Mr. Friedman ask a very important question about this particular case and Guantanamo itself. If after FIVE YEARS the Bush administration can’t even prosecute a child foot soldier, just why are we wasting resources on this prison? Why is a foot soldier who when 15 (a child) was picked up because he threw a grenade at Americans being charged when he is not the “worst of the worst?” Why does the Bush administration not charge KSM? Or are they holding his trial until just before the 2008 election?

What kind of country charges a child for war crimes? And what kind of Christian crows for the desire to double these kinds of actions?

2 Comments »

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  1. Mormon 2:1

    “And it came to pass in that same year there began to be a war again between the Nephites and the Lamanites. And notwithstanding I” (Mormon) “being young,” (15) “was large in stature; therefore the people of Nephi appointed me that I should be their leader, or the leader of their armies.”

    I know, I know — that was then, this is now. 😉

  2. Don’t forget, in the greatest battle of them all, for the salvation of our souls, our modern day prophet through whom the Lord restored all, was a mere 14 when he had his First Vision…

    but yes, that was then and this is now.


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