grant military commission jurisdiction over minors let alone set forth any

Grant military commission jurisdiction over minors

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grant military commission jurisdiction over minors, let alone set forth any special procedures to be used in conducting military commission procedures involving juveniles defendants. Cf . Juvenile Delinquency Act (“JDA”), 18 U.S.C. §§ 5031 et seq . (setting forth special procedures for use in trying juvenile alleged to have violated federal criminal laws); SCSL Statute, Art. 7 (setting forth special procedures for exercising jurisdiction over persons alleged to have committed crimes when between 15 and 18 years of age). And in light of the legal background against which the MCA was enacted, there is no sound basis for concluding that the MCA conferred jurisdiction over juveniles implicitly . Military tribunals—including the courts martial upon which the MCA commissions were expressly modeled—have long held that they lack jurisdiction over persons too young to become validly consenting members of the military. The MCA should be read against this backdrop. Further, a pre-existing statutory scheme—the JDA—by its terms governs federal jurisdiction over juveniles, including aliens abroad, alleged to have violated federal criminal law. Interpreting the MCA as conferring military commission over such juveniles would require this Court to conclude that the MCA had repealed the JDA by implication. In addition, interpreting the MCA to confer jurisdiction over juveniles would squarely conflict with the United States’ obligations under the Child Soldier Protocol, which (as noted earlier) requires juveniles detained in armed conflict to be demobilized, rehabilitated, and assisted with reintegration into society. It is implausible that Congress would have implicitly conferred jurisdiction over juveniles, when doing so would break with long-standing military tradition, implicitly overrule and undermine the purposes of a comprehensive federal statutory scheme, and bring the United States out of compliance with a binding treaty obligation. Congress could have created provisions for the trial of juvenile offenders for alleged war crimes that comported with U.S. treaty obligations and the 24
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JDA. But it has not done so. A. The MCA Should be Construed as Consistent with Longstanding Military Law, Which Does Not Recognize Military Jurisdiction Over Crimes Committed by Juveniles Who Have Not Acquired Lawful Military Status Military tribunals have long been held to lack personal jurisdiction over persons who are below the age of consent necessary to acquire valid military status. As discussed above, since at least 1758, courts have held that minors who are below the age of consent cannot be subject to the jurisdiction of military tribunals. See Section I.B.1 supra (discussing Rex v. Parkins , [1758] 2 Kenyon 295, 96 Eng. Rep. 1188, Commonwealth ex rel. Webster v. Fox , 7 Pa. 336 (1847), Commonwealth v. Harrison , 11 Mass. (11 Tyng) 63 (1814), and additional cases); United States v. Ferguson , 37 C.M.R. 464, 467-68 (1967) (recognizing that military tribunals lacked jurisdiction over minors under the Articles of War, the precursor to the UCMJ). See generally Col. William Winthrop, Military Law and Precedents 545 n.66 (2d ed. 1920) (noting that
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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