Summary of Argument

Amicus supports Defendant Omar K.’s argument that military commissions convened pursant to the Military Commissions Act (MCA) lack jurisdiction over Omar K. The MCA is silent as to the issue of personal jurisdiction over minors and the military commissions do not provide for a distinct process for juveniles. It would be untenable to impute personal jurisdiction into a silent statute particularly when, in every state in the nation, juvenile offenders are submitted to adult prosecution only by express authorization.1 To impute jurisdiction where there is silence would be comparable to states transferring a juvenile from juvenile court to adult court in the absence of a legislative directive to do so. All 50 states, plus the District of Columbia affirmatively declare the parameters in which a juvenile may be, or in some cases must be transferred to adult court. No state would arbitrarily transfer a juvenile to adult court without such explicit direction. Similarly the military commission cannot arbitrarily assume jurisdiction over a juvenile when jurisdiction has not been explicitly conferred.

Defendant’s brief lays out the analysis establishing that Congress’ silence in the MCA presupposes that an enemy combatant subject to military commission jurisdiction must at least be the minimum age to participate in hostilities and join the military force on whose behalf he allegedly fought. The brief establishes that this interpretation is supported by longstanding military law, international humanitarian law, and congressional intent. Amicus build from Respondent’s argument to demonstrate that Respondent’s analysis of the MCA is further supported by a broad range of federal law distinguishing juveniles from adults. Moreover, this federal law is complemented by an emerging body of social science research attesting to the developmental differences between adolescents and adults. Finally, amicus note that the United States has a history of, and commitment to rehabilitating and reintegrating child soldiers.

United States Supreme Court jurisprudence and federal legislation have consistently accounted for the developmental and social differences of youth in delineating their constitutional and legal rights when they are accused of crimes. But “[i]n detaining Omar K., the United States has flouted juvenile justice standards that provide for children to be treated in accordance with their unique vulnerability, lower degree of culpability, and capacity for rehabilitation.” See Human Rights Watch, Press Release, US: Move O.K. and Hamdan Cases to Federal Court, (June 1, 2007), http://hrw.org/english/docs/2007/06/01/usdom16050.htm. As demonstrated infra, the recognition that youth have a “unique vulnerability, lower degree of culpability, and capacity for rehabilitation” is indeed embedded in our legal tradition. And the powerful testimony of former Sierra Leonean child soldier Ishmael Beah at the hearings on the Child Soldier Prevention Act of 2007 reminds us of the wisdom of that tradition:

I wouldn’t be alive today if it weren't for the presence of non-governmental organizations that believed that children like myself, due to our emotional and psychological immaturity, had been brainwashed and forced to be killers, and above all, that we could be rehabilitated and reintegrated into society. Healing from the war was a long-term process that was difficult but very possible. It required perseverance, patience, sensitivity, and a selfless compassion and commitment from the staff members at my healing center. Effective rehabilitation of children is in itself a preventative measure and this should be the focus, not punitive measures against children that have no beneficial outcome.

Hearing on Casualties of War: Child Soldiers and the Law Before The Senate Judiciary Subcommittee on Human Rights and the Law, 110th Cong (April 24, 2007) (testimony of Ishmael Beah, Author, A Long Way Gone: Memoirs of a Boy Soldier), available at http://judiciary.senate,gov/print_testimony.cfm?id=2712&wit_id=6387. A holding that the military commissions convened pursuant to the Military Commissions Act (MCA) lack jurisdiction over O.K would fit squarely within this legal tradition.

Summary of Argument

Amicus submits that the military commissions convened pursuant to the Military Commissions Act (MCA) lack jurisdiction over Omar K. because the MCA is silent regarding personal jurisdiction over minors. This silence is particularly significant because all states require explicit authorization for juvenile offenders to be prosecuted as adults. Amicus argues that imputing jurisdiction in the absence of explicit statutory direction would be comparable to states transferring juveniles to adult court without legislative authorization.

Defendant's brief further establishes that congressional silence in the MCA suggests that an enemy combatant subject to military commission jurisdiction must be of an age capable of participating in hostilities and joining the military force on whose behalf he is alleged to have fought. Amicus strengthens this argument by demonstrating that federal law distinguishes between juveniles and adults, and that this distinction is supported by emerging social science research on adolescent development. Additionally, Amicus emphasizes the United States' historical commitment to rehabilitating and reintegrating child soldiers.

Amicus cites US Supreme Court jurisprudence and federal legislation that consistently recognize the developmental and social differences of youth in delineating their constitutional and legal rights when accused of crimes. This legal tradition recognizes the "unique vulnerability, lower degree of culpability, and capacity for rehabilitation" of youth, as demonstrated by the testimony of former Sierra Leonean child soldier Ishmael Beah. Beah highlights the importance of rehabilitation for child soldiers, advocating for preventative measures instead of punitive ones. Amicus concludes that a holding that the MCA lacks jurisdiction over Omar K. would align with this legal tradition.

Summary of Argument

Amicus supports Defendant Omar K.’s argument that military commissions convened pursuant to the Military Commissions Act (MCA) lack jurisdiction over Omar K. The MCA is silent on the issue of personal jurisdiction over minors, and the military commissions do not provide for a distinct process for juveniles. It would be unreasonable to impute personal jurisdiction into a silent statute, particularly when every state in the nation requires express authorization for juvenile offenders to be prosecuted as adults. To impute jurisdiction where there is silence would be comparable to states transferring a juvenile from juvenile court to adult court without legislative direction. All 50 states and the District of Columbia explicitly define the parameters for transferring a juvenile to adult court. No state would arbitrarily transfer a juvenile to adult court without such explicit direction. Similarly, the military commission cannot arbitrarily assume jurisdiction over a juvenile when jurisdiction has not been explicitly conferred.

Defendant’s brief establishes that Congress’ silence in the MCA presupposes that an enemy combatant subject to military commission jurisdiction must at least be the minimum age to participate in hostilities and join the military force on whose behalf he allegedly fought. The brief also establishes that this interpretation is supported by longstanding military law, international humanitarian law, and congressional intent. Amicus builds upon Respondent’s argument to demonstrate that Respondent’s analysis of the MCA is further supported by a broad range of federal law distinguishing juveniles from adults. Moreover, this federal law is complemented by an emerging body of social science research attesting to the developmental differences between adolescents and adults. Finally, amicus notes that the United States has a history of and commitment to rehabilitating and reintegrating child soldiers.

United States Supreme Court jurisprudence and federal legislation have consistently accounted for the developmental and social differences of youth in delineating their constitutional and legal rights when they are accused of crimes. But “[i]n detaining Omar K., the United States has flouted juvenile justice standards that provide for children to be treated in accordance with their unique vulnerability, lower degree of culpability, and capacity for rehabilitation.” As demonstrated infra, the recognition that youth have a “unique vulnerability, lower degree of culpability, and capacity for rehabilitation” is indeed embedded in our legal tradition. And the powerful testimony of former Sierra Leonean child soldier Ishmael Beah at the hearings on the Child Soldier Prevention Act of 2007 reminds us of the wisdom of that tradition:

I wouldn’t be alive today if it weren't for the presence of non-governmental organizations that believed that children like myself, due to our emotional and psychological immaturity, had been brainwashed and forced to be killers, and above all, that we could be rehabilitated and reintegrated into society. Healing from the war was a long-term process that was difficult but very possible. It required perseverance, patience, sensitivity, and a selfless compassion and commitment from the staff members at my healing center. Effective rehabilitation of children is in itself a preventative measure and this should be the focus, not punitive measures against children that have no beneficial outcome.

Hearing on Casualties of War: Child Soldiers and the Law Before The Senate Judiciary Subcommittee on Human Rights and the Law, 110th Cong (April 24, 2007) (testimony of Ishmael Beah, Author, A Long Way Gone: Memoirs of a Boy Soldier), A holding that the military commissions convened pursuant to the Military Commissions Act (MCA) lack jurisdiction over O.K. would fit squarely within this legal tradition.

Summary of Argument

The Amicus brief argues that the military commissions set up by the Military Commissions Act (MCA) lack jurisdiction over Omar K. because the law doesn't explicitly say that they can try minors. Since no state in the US allows a juvenile to be tried as an adult without specific legal authorization, the argument suggests that it would be unfair to assume that the MCA allows military commissions to try minors without any clear statement to that effect.

The brief also points out that Congress's silence on this issue means they probably assumed that anyone subject to military commission jurisdiction must be old enough to join the military and fight in a war. It supports this argument by looking at military law, international rules on war, and what Congress intended.

The Amicus brief also draws on a range of laws that treat minors differently from adults in the US, along with research on how the brains of teens develop differently than adults. They argue that the US has a history of trying to help child soldiers get better and become part of society again.

The brief concludes that a decision saying that Omar K. shouldn't be tried by the military commission would be consistent with how the US legal system usually treats children. It also emphasizes that children are especially vulnerable, less responsible for their actions, and more likely to change their behavior, as shown in the testimony of former child soldier Ishmael Beah.

Summary of Argument

This brief is arguing that the military commissions set up by the Military Commissions Act (MCA) can't try Omar K., who was 15 at the time of his actions, because the MCA doesn't say anything about trying kids. All 50 states have laws saying when a kid can be tried as an adult, and no state would just send a kid to adult court without a law saying so. It's the same with the military commissions—they can't try a kid without a law saying they can.

The Amicus also says that the MCA doesn't say you have to be a certain age to be tried by a military commission. But the Amicus says that a long time ago, military laws and international laws said you had to be a certain age to fight in a war. The Amicus also says that a lot of other laws in the United States treat kids differently than adults because they are still growing up and learning.

The Amicus says that it would be better to treat Omar K. like a kid because kids are more likely to be influenced by bad people and are more likely to be able to change. They say that there are groups who help kids who have been in wars to get better. The Amicus says that these groups believe that kids who fight in wars need to be helped, not punished, and that this is the best way to stop kids from fighting in wars.