law holding that the military does not have jurisdiction over minors too young

Law holding that the military does not have

This preview shows page 3 - 6 out of 45 pages.

law holding that the military does not have jurisdiction over minors too young to consent to military status; draw the MCA into conflict with the JDA, requiring this Court to conclude that the MCA had implicitly overruled the JDA; and conflict with the Child Soldier Protocol, a treaty the United States actively promoted, and then signed and ratified a mere four years before the MCA was enacted. Accordingly, this Court should enter an order enjoining any MCA military 3
Image of page 3
commission from asserting personal jurisdiction over Petitioner, and ordering Petitioner released from pre-trial custody related to any MCA military commission trial. Second , Petitioner’s detention as a putative “enemy combatant” is unlawful because he was a juvenile at the time he was detained. The Combatant Status Review Tribunal (“CSRT”) examining Petitioner’s detention found that Petitioner was an “enemy combatant” subject to ongoing detention at Guantánamo Bay solely because he was “a member of, or affiliated with al- Qaeda.” But under longstanding law-of-war principles, embodied most recently in the Child Soldier Protocol, juveniles lack the capacity to consent to military status, and thus cannot be considered valid “members” or “affiliates” of armed groups. Because the President’s detention authority, conferred by the Authorization for the Use of Military Force (“AUMF”), is limited by, and must be exercised consistently with, the law of war, the Government lacks authority to detain Petitioner on its stated basis. As a result, this Court should—consistent with the Secretary of Defense’s Order governing the treatment of detainees found not to be enemy combatants—order Petitioner released to the custody of his home country, Canada, which can then place Petitioner in a mandatory rehabilitation and reintegration program. Third , even if this Court were to conclude that Petitioner could be detained as an “enemy combatant” based on his putative membership in al-Qaeda, or even if there were some other sustainable basis for detaining Petitioner, he cannot be detained—as he has been since capture— as an adult. Rather, the law of war requires that, as a juvenile, he be placed into an appropriate rehabilitation and reintegration program. Petitioner’s current detention therefore exceeds the President’s authority under the AUMF, as would any future detention that was inconsistent with the fundamental requirements of rehabilitation and reintegration. Accordingly, even if this Court declines to order Petitioner released to the custody of his home country, it should order that 4
Image of page 4
Petitioner be released from adult detention and placed into an appropriate rehabilitation and reintegration program. These issues are all appropriate for summary disposition: no factual return is necessary to decide them.
Image of page 5
Image of page 6

You've reached the end of your free preview.

Want to read all 45 pages?

  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes
A+ icon
Ask Expert Tutors