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Soldiers of Misfortune - Abusive U.S. Military Recruitment and failure to Protect Child Soldiers, 2008

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U.S. Violations of the Optional Protocol on the Involvement of Children in Armed Conflict

SOLDIERS OF
MISFORTUNE
Abusive U.S. Military Recruitment
and Failure to Protect
Child Soldiers

Jania Sandoval (right) speaks with U.S. Army recruiter
Sfc. Luis Medina at Wright College in Chicago.
(Photo by Scott Olson/Getty Images)

ABOUT THE ACLU ........................................................................................................ 1
INTRODUCTION AND EXECUTIVE SUMMARY.................................................... 2
RECOMMENDATIONS.................................................................................................. 5
I. TARGETING OF YOUTH UNDER 17 FOR MILITARY RECRUITMENT
(Article 3(1)-(2)) ................................................................................................................ 8
a. Recruiters in High Schools Target Students Under 17 ........................................... 9
a. Joint Advertising Market Research & Studies (JAMRS) Database Targets Youth
Under 17 for Recruitment ............................................................................................. 11
b. Junior Reserve Officer Training Corps (JROTC) Target Children as Young as 14
for Recruitment ............................................................................................................. 12
c. Middle School Cadet Corps (MSCC), or Pre-JROTC, Targets Children as Young
as 11 .............................................................................................................................. 15
d. Armed Services Vocational Aptitude Battery (ASVAB) Targets High School
Children Under 17......................................................................................................... 15
e. “America’s Army” Video Game Is a Recruitment Tool That Targets Children as
Young as 13 .................................................................................................................. 16
II.
WIDESPREAD FAILURE TO APPLY SAFEGUARDS FOR
RECRUITMENT OF YOUTH UNDER 18 (Article 3(3))........................................... 17
a. Coercion, Deception, Abuse, and Other Misconduct by Recruiters Nullify the
“Voluntariness” of Recruitment.................................................................................... 18
b. Threats Against 17-Year-Olds Wishing to Withdraw from the Delayed Entry
Program (DEP) Amounts to Involuntary Recruitment ................................................. 21
c. The No Child Left Behind Act Violates the Parental Consent Provision of the
Optional Protocol .......................................................................................................... 23
d. Financial Status of Low-Income Youth and Students of Color Undermines
Voluntariness of Enlistment.......................................................................................... 27
III.
DEPLOYMENT OF YOUTH UNDER 18 TO AREAS OF ARMED
CONFLICT AMOUNTS TO DIRECT PARTICIPATION IN HOSTILITIES
(Article 1) ......................................................................................................................... 31
IV.
DETENTION AND TREATMENT OF FORMER CHILD SOLDIERS AT
GUANTANAMO AND U.S.-RUN FACILITIES IN IRAQ AND AFGHANISTAN
(Article 6) ......................................................................................................................... 33
a. The Case of Omar Khadr, a Child Soldier Detained at Guantánamo ................... 34
V. ASYLUM-SEEKING FORMER CHILD SOLDIERS ARE DENIED
PROTECTION (Article 6(3))......................................................................................... 36
VI.
U.S. FAILURE TO RATIFY THE CONVENTION ON THE RIGHTS OF
THE CHILD .................................................................................................................... 39
a. Juvenile Life Without Parole: Out of Step With the World................................. 41
b. Juvenile Detention Facilities: Warehouses of Problem Children ........................ 42
c. Children’s Right to Education: Racial Re-Segregation of Public Schools and the
School-to-Prison Pipeline ............................................................................................. 44
APPENDIX...................................................................................................................... 46

ABOUT THE ACLU
The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit,
nonpartisan organization dedicated to protecting human rights and civil liberties in the
United States. The ACLU is the largest civil liberties organization in the country, with
offices in 50 states and over 500,000 members. The ACLU was founded in 1920, largely
in response to the curtailment of liberties that accompanied America’s entry into World
War I, including the persecution of political dissidents and the denial of due process
rights for non-citizens. In the intervening decades, the ACLU has advocated to hold the
U.S. government accountable to the rights protected under U.S. Constitution and other
civil and human rights laws. Since the tragic events of September 11, a core priority of
the ACLU has been to stem the backlash against human rights in the name of national
security.
In 2004, the ACLU created a Human Rights Program specifically dedicated to
holding the U.S. government accountable to universal human rights principles in addition
to rights guaranteed by the U.S. Constitution. The ACLU Human Rights Program
incorporates international human rights strategies into ACLU advocacy on issues relating
to racial justice, national security, immigrants’ rights, and women’s rights.
The ACLU welcomes the opportunity to comment on the United States’
compliance with the Optional Protocol on the Involvement of Children in Armed Conflict
through this shadow report to the Committee on the Rights of the Child.

1

INTRODUCTION AND EXECUTIVE SUMMARY
The Optional Protocol on the Involvement of Children in Armed Conflict
(Optional Protocol) is meant to safeguard the rights of children under 18 from military
recruitment and deployment to war, and to guarantee basic protections to former child
soldiers, whether they are seeking refugee protection in the United States or are in U.S.
custody for alleged crimes.
The U.S. Senate ratified the Optional Protocol in December 2002. By signing and
ratifying the Optional Protocol to the Convention on the Rights of the Child, the U.S.
bound itself to comply with the obligations contained in the Optional Protocol. The
Optional Protocol provides that the absolute minimum age for voluntary recruitment is 16
years old. 1 It also instructs countries to set their own minimum age by submitting a
binding declaration, and the United States entered a binding declaration raising this
minimum age to 17. 2 Therefore, recruitment of youth ages 16 and under is categorically
disallowed in the United States.
The Optional Protocol imposes special minimum safeguards for the recruitment of
17-year-olds, requiring that military recruitment activities directed at 17-year-olds be
carried out with the consent of the child’s parents or guardians. 3 The Optional Protocol
also requires that recruitment must be genuinely voluntary, and that the military must
fully inform youth of the duties involved in military service. 4 In addition, the Optional
Protocol requires underage recruits to provide reliable proof of age prior to acceptance
into military service. 5 The Optional Protocol also requires the United States to take all
feasible measures to ensure that 17-year-old members of the armed forces do not take
part in hostilities. 6
Public schools serve as prime recruiting grounds for the military, and the U.S.
military’s generally accepted procedures for recruitment of high school students plainly
violate the Optional Protocol. In its initial report to the U.N. Committee on the Rights of
the Child, the U.N. body charged with monitoring compliance with the Optional Protocol,
the U.S. Government claims that “[n]o one under age 17 is eligible for recruitment.” 7 In
practice, however, the U.S. armed services regularly target children under 17 for military
recruitment, heavily recruiting on high school campuses, in school lunchrooms, and in
classes. Department of Defense instructions to recruiters, the U.S. military’s collection of
1

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict, May 25, 2000, U.N. GAOR, U.N. Doc A/54/RES/263 (entered into force Feb. 12, 2002), art. 3(1)(2).
2
Office of the U.N. High Commissioner for Human Rights, Ratifications and Reservations, Optional
Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,
United States of America, Declaration (2005), para. (A).
3
Optional Protocol, supra note 1, at art. 3(3)(b).
4
Id., art. 3(3)(a), 3(3)(c).
5
Id., art. 3(3)(d).
6
Id., art. 1.
7
U.S. Department of State, 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, UN Doc CRC/C/OPAC/USA/1, June 22, 2007, para. 21.

2

information on hundreds of thousands of 16-year-olds, and military training corps for
children as young as 11 reveal that students are targeted for recruitment as early as
possible. By exposing children younger than 17 to military recruitment, the United States
military violates the terms of the Optional Protocol.
U.S. military recruitment of youth under 18 also frequently violates the minimum
safeguards required by the Optional Protocol. Wartime enlistment quotas have placed
increased pressure on military recruiters to fill the ranks of the armed services. The
added strain of fulfilling enlistment quotas necessary to carry out sustained U.S. military
operations in Iraq and Afghanistan without reinstituting a draft has contributed to a rise in
aggressive recruitment efforts and allegations of misconduct and abuse by recruiters, in
contravention of the Optional Protocol. In the absence of a policy on implementation of
the Optional Protocol, 8 misconduct by recruiters often goes unchecked.
Misconduct by recruiters and heavy-handed recruitment tactics render recruitment
involuntary, and despite government and media reports documenting military recruiter
misconduct when recruiting prospective enlistees under the age of 18, protections for
students against coercive recruitment tactics remain weak. Recruiters threaten serious
penalties to 17-year-old youth who have signed Deferred Entry contracts and
subsequently changed their minds about enlisting, in some cases forcing these youth to
report to basic training against their will. A provision of the federal No Child Left
Behind Act forces schools to open their doors to recruiters and provide the military with
students’ information to undergo recruitment without parents’ informed consent. The
U.S. military’s practice of targeting low-income youth and students of color for
recruitment, in combination with exaggerated promises of financial rewards for
enlistment, undermines the voluntariness of their enlistment.
The United States also fails to accord basic protections to former child soldiers
from other countries. In the case of Omar Khadr, who has been in Department of
Defense custody since he was 15 years old, the United States has detained the alleged
child soldier at Guantánamo for a period of prolonged pretrial detention without charge;
denied him access to legal counsel for over two years; reportedly subjected him to torture
and other cruel, inhuman and degrading treatment; and denied him independent
psychological assessment and treatment. The United States also has prosecuted Khadr in
a substandard legal proceeding characterized by the withholding of exculpatory evidence
from his defense counsel and the failure to meet internationally recognized standards for
the trial of juveniles. In the cases of some former child soldiers who were victims of
serious human rights abuses abroad and are seeking protection in the United States
because they cannot return to a safe civilian life in their home countries, children are
being excluded from protection under immigration provisions intended to bar those who
victimized them.

8

John T. Rawcliffe, Child Soldiers: Legal Obligations and U.S. Implementation, ARMY LAWYER , Sept.
2007 (stating that “The DOD has no formal directive or regulation governing the implementation of the
Optional Protocol on Children in Armed Conflict”).

3

The United States is not doing enough to comply with the Optional Protocol. The
ACLU calls upon the United States to take immediate, meaningful action to bring its
policies and practices on military recruitment of youth, treatment and prosecution of
alleged child soldiers, and consideration of the asylum claims of former child soldiers
into compliance with the Optional Protocol.
A broader failure to recognize the importance of children’s rights underlies the
shortcomings of the United States’ policies and practices on military recruitment of
American youth and the U.S.’s failures to accord special protection to former child
soldiers from abroad. The United States is one of only two countries in the world not to
have ratified the Convention on the Rights of the Child (CRC), the most comprehensive
treaty on children’s rights. The CRC is the most universally accepted and least
controversial human rights treaty that has been drafted or adopted, and yet the United
States has failed to ratify it. Somalia, which for many years lacked a functioning central
government, is the only other country in the United States’ company in failing to
recognize the critical importance of protecting children’s human rights. If the United
States is to assert leadership on human rights issues, it must join the rest of the world in
ratifying the CRC.

4

RECOMMENDATIONS
The ACLU calls upon the United States Government to take immediate,
meaningful action to bring its policies and practices on military recruitment of youth;
detention, treatment and prosecution of alleged child soldiers; and consideration of the
asylum claims of former child soldiers, into compliance with the Optional Protocol.
Article 6(1) of the Optional Protocol requires that “[e]ach State Party shall take all
necessary legal, administrative and other measures to ensure the effective
implementation and enforcement of the provisions of the present Protocol within its
jurisdiction.” 9 Accordingly, the ACLU calls upon the United States to take the following
measures to ensure compliance with the Optional Protocol.
No Child Left Behind Act
• Eliminate the military recruitment provision (Section 7908 of Title 20 U.S.C.)
from the No Child Left Behind Act entirely, in order to disassociate military
recruiter access to information from state education funding, and to ensure that
federal school financing legislation does not tie school financing to military
recruitment of youth.
• In the alternative, reform the No Child Left Behind Act by building in safeguards
that protect children from military recruitment in violation of the Optional
Protocol:
o Amend Title 20 U.S.C. Section 7908 to create an effective opt-in
procedure, rather than an opt-out procedure that places the onus on
individual school districts to inform parents, and on parents and students
to submit opt-out forms.
o Clarify local education agencies’ responsibility to inform parents and
students of their right to opt out of the provision of their directory
information to military recruiters.
o Lessen the “stick” in this provision of the No Child Left Behind Act by
removing the threat of loss of federal education money to the state for
failure of the school or the school district to provide recruiters access and
information.
o Explicitly state that military recruiter access refers only to youth age 17
and above.
Recruiter Abuse
• Create readily accessible grievance procedures for recruiter abuses.
• Apply meaningful punishments to recruiters who engage in abusive, harassing, or
deceptive recruitment practices, including recruitment practices that violate the
Optional Protocol or Department of Defense recruitment guidelines.
JAMRS
• End JAMRS database data mining program. Return military’s data collection
power to levels set forth in Selective Service program as detailed in the Selective
Service Act.

9

Optional Protocol, supra note 1, at art. 6(1) (emphasis added).

5

•

In the alternative, build in safeguards that protect children from military
recruitment in violation of the Optional Protocol:
o Require that the Department of Defense cease collecting information
about youth under 17 for recruitment purposes.
o Require that the Department of Defense give notice to every youth whose
name is entered into JAMRS recruitment databases that their information
has been entered, and notify them of their right to opt out and instructions
on how to do so.
o Create a reporting requirement for the Department of Defense, requiring
quarterly reporting to Congress detailing the number of persons entered
into the JAMRS database, sources of information, process by which
information is obtained, and monies spent on data acquisition.
o Require that all recruitment materials and advertisements printed, online,
on television advertisements, and in other media include prominent
information on the opt-out procedure.
o Create a military “do not call list” that includes an online and telephone
opt-out procedure.
o Prohibit the Department of Defense from collecting data on potential
recruits’ race and ethnicity, and prohibit the use of racially and ethnicallytargeted recruitment advertisements.
Delayed Entry Program (DEP)
• Require that all Delayed Entry Program materials include prominent notice that
there is no obligation to enlist and require DEP program participants to sign a
statement that prominently informs signers that there is no obligation to enlist.
• Create clearer, more prominent, and more readily accessible grievance procedures
for recruiter abuses.
• Strengthen the penalty against recruiters who coerce, lie to, or deceive potential
recruits about the DEP and other enlistment factors.
• Create a “Recruit’s Bill of Rights” that recruiters must publicize and post in
recruitment stations. The Bill of Rights should detail opt-out procedures and right
not to enlist.
ASVAB
• Create opt in/opt out rights for students taking ASVAB by giving each individual
student the authority to decide if his or her information will be kept private or be
given to the military for recruitment purposes,
• Require that each individual student who takes the ASVAB be informed that the
test is not mandatory and that their school or principal has the authority to
determine the privacy level of student information by printing said information
prominently on test.
Recommendations to Local Departments of Education and School Boards
• Create a transparent, system-wide policy governing military recruitment in public
schools to defend students’ and parents’ right to withhold information from the
military, limit military recruiter access to high school campuses, protect student
safety, and ensure educational integrity.
• Local departments of education should clearly inform public high school students
about their rights in relation to military recruitment, protect students from
6

Implementation of and Training on the Optional Protocol
• Incorporate the Optional Protocol standards in all military recruitment training,
including in military recruitment handbooks.
Detention and Treatment of Former Child Soldiers at Guantánamo and U.S. Facilities in
Iraq and Afghanistan
• Incorporate into military policies internationally recognized standards regarding
the detention and treatment of child soldiers including providing them all
appropriate assistance for their physical and psychological recovery and their
social reintegration.
• Refrain from the use of military commissions to try children under the age of 18.
• Insure that the prosecution and trial if child soldiers for alleged crimes is a matter
of last resort and consistent with universal standards of juvenile justice able to
assess their culpability relative to their need for rehabilitation.
• Devise and disseminate a clear policy on the treatment and handling of juveniles
in U.S. custody.
• Create special programs for rehabilitation, support, and social reintegration for
former child soldiers.
Asylum-Seeking Child Soldiers
• Carefully assess the situation of asylum-seeking former child soldiers and provide
them with immediate, culturally and child sensitive multidisciplinary assistance
for their physical and psychological recovery and their social reintegration in
accordance with Article 6(3) of the Optional Protocol.
• Ensure that the best interests of the child and the principle of non-refoulement are
primary considerations taken into account in the decision-making process
regarding repatriation of a former child soldier.
• Establish the recruitment of children as soldiers as a child-specific form of
persecution to be accepted as a basis for asylum. Enact legislation to ensure
asylum-seeking former child soldiers are not categorically excluded from asylum.
• The Department of Homeland Security should recognize defenses to the
persecutor bar for former child soldiers.
• Ensure that all enacted legislation pertaining to asylum-seeking child soldiers
provides for an individual determination of the inadmissibility or deportability in
each asylum case of a former child soldier, taking into account their youth, the
involuntariness of their conscription, circumstances of duress, or any other
circumstances that might exculpate them.
• Cease detaining in immigration detention facilities children who have been
recruited or used in child soldiers.
Ratification of the Convention on the Rights of the Child
• The ACLU calls upon the United States to ratify the Convention on the Rights of
the Child.

7

I.

TARGETING OF YOUTH UNDER 17 FOR MILITARY
RECRUITMENT (Article 3(1)-(2))

The United Nations proposed the Optional Protocol to establish 18 as the
minimum age for all recruitment or service in the armed forces. The United States and
several other countries opposed the proposal and lobbied for a watered-down version of
the Optional Protocol that would allow countries to establish their own minimum age for
recruitment. 10 Accordingly, when it ratified the Optional Protocol, the U.S. submitted a
binding declaration setting 17 as the absolute minimum age for voluntary military
recruitment, 11 although 18 is the preferable international minimum standard for
recruitment. As of 2004, 54 of the 77 countries that had then ratified the Optional
Protocol had taken the “straight-eighteen” position, setting 18 as the minimum age for
recruitment in these countries. 12 The U.N. Committee on the Rights of the Child also
advocates the straight-18 standard. 13
And yet the U.S. armed services regularly target children under 17 for military
recruitment. The U.S. military heavily recruits on high school campuses, targeting
students for recruitment as early as possible and generally without limits on the age of
students they contact. Despite a lawsuit challenging its identification of eleventh-grade
high school students for recruitment, the Department of Defense’s central recruitment
database continues to collect information on 16-year-olds for recruitment purposes.14
The Junior Reserve Officer Training Corps (JROTC), mandatory for students in some
schools, provides military training to children as young as 14 and heavily recruits its
cadets. 15 The pre-JROTC, or Middle School Cadet Corps (MSCC), operates in middle
10

Wojcik et al., International Legal Developments in Review: 1999 Public International Law, Human
Rights, 34 INT’L LAW 761, 771 (2000) (describing U.S. participation in working group drafting the Optional
Protocol during which the U.S. and several other governments opposed any restriction on use of minors
who volunteer for military service despite the Optional Protocol’s call for “government measures and
international assistance to demobilize and rehabilitate former child soldiers, and to reintegrate them into
society”); Comm. on Military Affairs and Justice, “The Minimum Age of Military Service in Connection
with the Proposed Optional Protocol to the International Convention on the Rights of the Child,” 55 Record
of the Association of the Bar of the City of New York 264, 274 (2000).
11
Ratifications and Reservations, Optional Protocol, supra note 2, at para. (A).
12
Lila A. Hollman, Children’s Rights and Military Recruitment on High School Campuses, 13 U.C. DAVIS
J. INT’L L. & POL’Y 217, 233 (2007). As of April 2008, 120 countries had ratified or acceded to the
Optional Protocol. Office of the U.N. High Commissioner for Human Rights, Ratifications and
Reservations, Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict.
13
The Optional Protocol notes, “State Parties shall raise in years the minimum age for the voluntary
recruitment of person into their national armed forces from...[fifteen]...and recognizing that under the
Convention persons under the age of 18 are entitled to special protection.” Optional Protocol, supra note 1,
at art. 3(1). In its Recommendations on Children in Armed Conflict, the CRC recalled “its major
recommendation on the fundamental importance of raising the age of all forms of recruitment of children
into the armed forces to eighteen years and the prohibition of their involvement in hostilities.” CRC
Recommendations on Children in Armed Conflict, U.N. Doc CRC/C/80, (1998), para. 5.
14
See, e.g. Privacy Act of 1974, 72 Fed. Reg. 952, 954; New York Civil Liberties Union, Press Release,
“To Settle NYCLU Lawsuit, Defense Department Reforms Student Military Recruiting Database,” Jan. 9,
2007, available at http://milrec.nyclu.org/archive/00000016.html.
15
See, e.g. Jennifer Wedekind, The Children’s Crusade: Military Programs Move into Middle Schools to
Fish for Future Soldiers, IN THESE TIMES, June 3, 2005; Karen Houppert, Who’s Next?, THE NATION, Aug.

8

schools and junior high schools, targeting children as young as 11 for recruitment
activities. 16 The Army administers its Armed Services Vocational Aptitude Battery
(ASVAB) exam, also used to target students for recruitment, on 16-year-olds who are in
the eleventh grade. 17 A video game explicitly marketed to children as young as 13 serves
as a recruitment tool for the Army. 18
a. Recruiters in High Schools Target Students Under 17
In its report to the Committee, the U.S. Government claims that “[n]o one under
age 17 is eligible for recruitment.” 19 However, high school recruiters begin contacting
and heavily recruiting prospective recruits well before they sign enlistment contracts or
Delayed Entry Program contracts at the age of 17. The U.S. military’s recruitment
policies, practices, and strategies explicitly target students under 17 for recruitment
activities on high school campuses, in violation of the Optional Protocol. The U.S. Army
Recruiting Command’s “School Recruiting Program Handbook,” distributed to the
Army’s over 10,600 recruiters 20 to provide guidance on recruitment in secondary schools,
directs recruiters to approach high school students as early as possible. The handbook
instructs recruiters to target students before they are high school seniors (in general,
seniors are 17 years old): “Remember, first to contact, first to contract…that doesn’t just
mean seniors or grads…. If you wait until they’re seniors, it’s probably too late.” 21
A study of recruitment of youth commissioned by the Department of Defense’s
Joint Advertising and Marketing Research and Studies (JAMRS) notes that recruiters are
assigned all the students at a given high school, not just those age 17 and over. The
report summarizes recruitment procedures as follows: “Within a Service, each recruiter
has an exclusive geographic zone usually defined in terms of specific high schools and
the areas those schools serve. For example, a specific…recruiter is assigned
responsibility for all youth attending a specific high school and for the geographic area
where those youth live.” 22
Once recruiters are inside their assigned high schools, the U.S. Army Recruiting
Command instructs recruiters to “effectively penetrate the school market,” and to “[b]e so
25, 2005; National Network Opposing Militarization of Youth, JROTC, available at
http://www.nnomy.org/joomla/index.php?option=com_content&task=view&id=22&Itemid=47.
16
Wedekind, Id.
17
See, e.g. Houppert, supra note 16.
18
See, e.g. Josh White, It’s a Video Game, and an Army Recruiter, WASH. POST, May 27, 2005, at A25;
Jacob Hodes & Emma Ruby-Sachs, ’America’s Army’ Targets Youth, THE NATION, Aug. 23, 2002; Seth
Schiesel, On Maneuvers With the Army’s Game Squad, N.Y. TIMES, Feb. 17, 2005.
19
U.S. Department of State, Initial Report, supra note 7, at para. 21.
20
United States Government Accountability Office (GAO), DOD and Services Need Better Data to
Enhance Visibility Over Recruiter Irregularities, GAO-06-846, Aug. 2006, p. 9.
21
U.S. Army Recruiting Command, School Recruiting Program Handbook, USAREC Pamphlet 350-13, p.
3, para. 2-2(n), Sept. 1, 2004, available at
http://www.usarec.army.mil/im/formpub/REC_PUBS/p350_13.pdf.
22
NATIONAL ACADEMY OF SCIENCES, COMMITTEE ON THE YOUTH POPULATION AND MILITARY
RECRUITMENT, PAUL R. SACKETT & ANN S. MAVOR, EDS., ATTITUDES, APTITUDES, AND ASPIRATIONS OF
AMERICAN YOUTH: IMPLICATIONS FOR MILITARY RECRUITMENT 235 (2003) (emphasis added).

9

helpful and so much a part of the school scene that you are in constant demand,” with the
goal of “school ownership that can only lead to a greater number of Army enlistments.” 23
The “School Recruiting Program Handbook” also instructs Army recruiters in high
schools to offer their services as assistant football, basketball, track, baseball, or wrestling
coaches, to “offer to be a chaperon or escort for homecoming activities and coronations,”
to “[d]eliver donuts and coffee for the faculty once a month,” to participate visibly in
Hispanic Heritage and Black History Month activities, to “get involved with local Boy
Scout troops,” to “offer to be a timekeeper at football games,” to “serve as test proctors,”
to “eat lunch in the school cafeteria several times each month,” to “[a]ttend as many
school holiday functions or assemblies as possible,” and to befriend student leaders, such
as the student president or the captain of the football team, whom recruiters can develop
into “COIs” (centers of influence) that can encourage other students to enlist. 24
The reported tactics of military recruiters reflect the methods the Army touts in its
handbook. For instance, one military recruiter in Los Angeles, California reportedly
does push-ups with students during physical education classes, plays in faculty basketball
games, and distributes key chains, T-shirts and posters stating “Think of Me as Your New
Guidance Counselor” in the school lunchroom. 25 At another California high school, one
teacher reported that military recruiters offered to buy students’ prom tickets if they sign
up for information about enlisting, attend school dances and faculty meetings, and at
times receive permission from teachers to address their classes during class time. 26
Romy Chowdhury, a recent graduate of Thomas Edison high school in New York, told
the New York Civil Liberties Union, “At least twice a week I’d see recruiters coming into
the guidance office talking to us about the military and giving us bags, cups, squishy
balls, etc. promoting the Marine and Army slogans… We have enough to worry about
our education that we don’t need to also be worried about military recruiters talking to us.
They really should not be there.” 27
All of the above described activities amount to recruitment, and yet the Army’s
recruiting handbook contains no instructions to limit recruitment activities to youth age
17 and over. Instead, recruiters are encouraged to target the entire high school
population, grooming prospective recruits as early as possible.
The ACLU has documented numerous cases of recruitment targeting children
under 17 in violation of the Optional Protocol. Many of these cases have been
documented in New York and California, two of the most populous states in the U.S.
with large numbers of minority high school students. For instance, Los Angeles County,
California is the single county in the United States with the largest number of Army
23

U.S. Army Recruiting Command, School Recruiting Program Handbook, supra note 22, at p. 2, para. 14(c), 2-2(c).
24
Houppert, supra note 16.
25
Erika Hayasaki, Military Recruiters Targeting Minority Teens, L.A. TIMES, Apr. 5, 2005.
26
Id.
27
NEW YORK CIVIL LIBERTIES UNION AND MANHATTAN BOROUGH PRESIDENT SCOTT STRINGER, WE
WANT YOU(TH)!: CONFRONTING UNREGULATED MILITARY RECRUITMENT IN NEW YORK CITY PUBLIC
SCHOOLS 18 (Sept. 2007) available at
http://www.nyclu.org/files/we_want_youth_milrec_report_090607.pdf.

10

recruits, 28 and in Los Angeles Unified School District, the vast majority of students are
non-white (91 percent) and low-income (74.8 percent). 29 New York City, in which lowincome students account for 51 percent of students in high schools citywide and 71
percent of high school students are black or Latino, contains three of the nation’s top 32
counties for Army enlistment. 30
In a survey of nearly 1,000 ninth-, tenth-, eleventh- and twelfth-graders at 45 New
York City high schools, the New York Civil Liberties Union and the Office of
Manhattan Borough President Scott Stringer, in conjunction with the “Students or
Soldiers? Coalition,” found that more than one in five respondents (21 percent) at
selected schools reported the use of class time by military recruiters. 31 The surveyed
students were equally distributed among ninth-, tenth-, eleventh- and twelfth-graders
(typically ages 14 to 17). 32 Survey results also showed that 13 percent of respondents
reported seeing military recruiters in their schools at least once a week, and 35 percent of
respondents indicated that military recruiters have access to multiple locations within
their schools, such as hallways and classrooms. 33
a. Joint Advertising Market Research & Studies (JAMRS) Database
Targets Youth Under 17 for Recruitment
While the U.S. claims in its report to the Committee that “[n]o one under age 17 is
eligible for recruitment,” 34 the Department of Defense’s central recruitment database, the
Joint Advertising Market Research & Studies database (JAMRS), collects information on
16-years-olds who are in the eleventh grade, not only those who have reached the age of
17. 35
In 2005, the Pentagon announced in the Federal Register the existence of the
JAMRS database, a massive registry of 30 million Americans between the ages of 16 and
25 maintained for recruitment purposes. It is believed to be the largest repository of
information concerning 16- to 25-year-olds. In addition to directory information such as
28

National Priorities Project, Top 100 Counties by Number of Army Recruits, 2006, Dec. 22, 2006,
available at http://www.nationalpriorities.org/charts/Top-100-counties-by-number-of-Army-recruits2006.html.
29
ACLU, RACE & ETHNICITY IN AMERICA: TURNING A BLIND EYE TO INJUSTICE, SHADOW REPORT
SUBMITTED TO THE COMMITTEE ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (CERD)
150 (DEC. 2007) available at http://www.aclu.org/pdfs/humanrights/cerd_full_report.pdf.
30
National Priorities Project, Top 100 Counties by Number of Army Recruits, 2006, supra note 29.
31
NEW YORK CIVIL LIBERTIES UNION AND MANHATTAN BOROUGH PRESIDENT SCOTT STRINGER, WE
WANT YOU(TH)!, supra note 28, at p. 4. The survey was also conducted by the “Students or Soldiers?
Coalition,” including the New York Civil Liberties Union (NYCLU), the Ya-Ya (Youth Activists-Youth
Allies) Network, New York City United for Peace and Justice (NYC UFPJ), and the New York Collective
of Radical Educators (NYCoRE).
32
Id. at 15.
33
Id. at 20, 22.
34
U.S. Department of State, Initial Report, supra note 7, at para. 21.
35
Privacy Act of 1974, 72 Fed. Reg. 952, 954 (stating that the age categories of individuals covered by the
JAMRS system includes “Young adults aged 16 to 18”). See also New York Civil Liberties Union, Press
Release, To Settle NYCLU Lawsuit, supra note 15.

11

name, home address, and home telephone number obtained by recruiters from high
schools, JAMRS also includes e-mail addresses, grade point averages, college intentions,
height and weight information, schools attended, courses of study, military interests, and
racial and ethnic data obtained from a variety of public and private sources. 36 The
regulation creating JAMRS states the purpose of the database is to assist the armed
services in their “direct marketing recruiting efforts.” 37
In 2006, the New York Civil Liberties Union sued the Department of Defense,
claiming that it had violated the privacy rights of students by distributing information
gathered for military recruitment purposes to private contractors and employing
unnecessarily aggressive recruitment tactics. The ACLU also argued that the database’s
inclusion of information about students at least as young as 16 violated a U.S. law
limiting DOD to collecting information only on individuals ages 17 or older or in the
eleventh grade or higher. 38
As a result of the New York Civil Liberties Union’s efforts, the Department of
Defense agreed to reform its recruitment database. Under the terms of a settlement
agreement, the Department of Defense agreed to “stop disseminating student information
to law enforcement, intelligence or other agencies and instead limit use of the JAMRS
database to military recruiting; limit to three years the time DoD retains student
information; stop collecting student Social Security numbers; stop collecting information
about students younger than 16; establish and clarify procedures by which students can
block the military from entering information about them in the database and have their
information removed.” 39 Despite the lawsuit, the Department of Defense refused to
cease collecting information about students’ race and ethnicity. 40
While the Department of Defense agreed to stop collecting information about 15year-olds, it refused to cease collecting information about 16-year-olds. As a result, the
JAMRS database continues to collect information about 16-year-olds, in violation of the
Optional Protocol.
b. Junior Reserve Officer Training Corps (JROTC) Target Children as
Young as 14 for Recruitment

36

Privacy Act of 1974, 70 Fed. Reg. 29486-01 (May 23, 2005), 2005 WL 1198619 (authorizing
government to collect information including social security numbers, e-mail addresses, grade-point
averages, ethnicity and lists of subjects students study at school); see also Jonathan Krim, Pentagon
Creating Student Database: Recruiting Tool for Military Raises Privacy Concerns, WASH. POST, June 23,
2005, at A01; John J. Lumpkin, Teen Database Worries Critics, CBSNEWS.COM, June 23, 2005, available
at http://www.cbsnews.com/stories/2005/06/23/national/main703698.shtml.
37
Privacy Act of 1974, 70 Fed. Reg. 29486-01 (May 23, 2005), 2005 WL 1198619 (creating “joint
Advertising and Market Research Database to collect information on persons including high school
students, aged 16-18; the purpose of the database is to provide information to the armed services to assist
them in their “direct marketing recruiting efforts”).
38
See Department of Defense Authorization Act, 10 U.S.C. § 503 (2002).
39
New York Civil Liberties Union, Press Release, To Settle NYCLU Lawsuit, supra note 15.
40
Adam Liptak, Defense Dept. Settles Suit on Database for Recruiting, N.Y. TIMES, Jan. 10, 2007.

12

Children as young as 14 may enroll in Junior Reserve Officer Training Corps
(JROTC) programs, which operate at over 3,000 junior high schools, middle schools and
high schools nationwide. 41 JROTC programs are offered at approximately 18 percent of
high schools, are an integral part of the formal curriculum in at least 1,555 high schools,
and exist in all of the 50 states. 42 The Army has JROTC programs in 1,682 high schools;
the Navy maintains programs in 613 high schools; the Air Force has programs in 797
high schools; and the Marines have programs in 216 high schools (not including Puerto
Rico). 43 Approximately 273,000 high school JROTC “cadets” participated in the
program in 2005, an increase from 231,000 in 1999. 44
JROTC “cadets” receive military uniforms and conduct military drills and
marches, handle real and wooden rifles, and learn military history and behavior. Taught
by retired military, the Army describes the JROTC curriculum as “discipline, leadership
training, military history, marksmanship and rifle safety.” 45 JROTC employs retired
military personnel as classroom instructors to teach a military curriculum.
With the stated goals of enhancing children’s perceptions of a career in the
military and enhancing military recruiting efforts, JROTC undeniably is a recruitment
tool. An Army regulation states that JROTC “should create favorable attitudes and
impressions toward the Services and toward careers in the Armed Forces.” 46 A JROTC
Policy Memorandum states that the purpose of JROTC is “[t]o provide guidance on
implementation of initiatives to enhance recruiting efforts with the USAREC [U.S. Army
Recruiting Command].” 47 A study by the American Friends Service Committee
examining the JROTC curricula found a pro-military career bias in the curriculum of
each armed service branch. 48
The JROTC program demonstrably serves to increase numbers of student recruits.
JROTC participants are heavily recruited, and 45 percent typically enlist after
participating in the JROTC program, an enlistment rate much higher than the general
student population. 49 For example, at one working-class public high school in

41

National Network Opposing Militarization of Youth, JROTC, supra note 16.
National Priorities Project, Military Recruitment, Race and Ethnicity, available at
http://www.nationalpriorities.org/Publications/Military-Recruitment-Race-and-Ethnicity-2.html; National
Network Opposing Militarization of Youth, JROTC, supra note 16.
43
National Priorities Project, Id.
44
Houppert, supra note 16.
45
Id.
46
32 CFR 542.5:3c, cited in AMERICAN FRIENDS SERVICE COMMITTEE, MAKING SOLDIERS IN THE PUBLIC
SCHOOLS: AN ANALYSIS OF THE ARMY JROTC CURRICULUM 10 (1995) available at
http://www.afsc.org/youthmil/militarism-in-schools/msitps.pdf.
47
JROTC, Policy Memorandum 50 - U.S. Army Recruiting Command (USAREC) Partnership Initiatives,
Mar. 30, 1999, available at http://www.projectyano.org/pdf/JROTC_military_recruiting_memo.pdf
(emphasis added).
48
AMERICAN FRIENDS SERVICE COMMITTEE, MAKING SOLDIERS IN THE PUBLIC SCHOOLS, supra note 48, at
p. 10.
49
Id.; Houppert, supra note 16.
42

13

Maryland, where students in a JROTC class participate in drills run by a retired sergeant
major in uniform, Army recruiters call each JROTC student at least six times. 50
Students of color and poor students are disproportionately represented in JROTC.
African American and Latino students make up 54 percent of the participants in JROTC
programs. According to the National Priorities Project, of the top 50 high schools ranked
by the number of Black recruits, 47—or 94 percent—have a JROTC program affiliated
with some branch of the military. 51 Of the top 50 high schools ranked by the number of
Latino recruits, 43—or 86 percent—had a JROTC program affiliated with some branch
of the military. 52 According to the Coalition against Militarism in Our Schools, in the
Los Angeles Unified School District in California, the 30 JROTC programs, in which
4,754 students are enrolled, are located in the most economically depressed communities
in the city. 53
Students are involuntarily placed in the JROTC program in some public schools.
For example, teachers and students in Los Angeles, California reported that “high school
administrators were enrolling reluctant students in JROTC as an alternative to
overcrowded gym classes.” 54 Involuntary placement of Los Angeles students has been a
continuing problem, with involuntary enrollment surging before the fall deadline that
requires enrollment levels of 100 students to keep the program running (federal law
requires JROTC programs to have a minimum of 100 students or 10% of the student
body, whichever is less, in order to maintain a unit 55 ). For instance, students in Lincoln
High School in Los Angeles, California reported that they were automatically placed in
the JROTC program without being informed that it is voluntary; enrollment numbers
correspondingly jumped from 84 in September 2006, to 110, just in time to meet the
November 2006 deadline. 56
In Buffalo, New York, the New York Civil Liberties Union found that the entire
incoming freshman class (typically age 14) at Hutchinson Central Technical High School
was involuntarily and automatically enrolled in the JROTC program. 57 The school’s
assistant principle informed one objecting parent that her daughter could not drop the
JROTC class, and the student was told that she would face adverse consequences if she
did not come into compliance with the dress and hair code of JROTC. 58

50

Charlie Savage, Military Recruiters Target Schools Strategically, BOSTON GLOBE, Nov. 29, 2004.
National Priorities Project, Military Recruitment, Race and Ethnicity, supra note 44.
52
Id.
53
Coalition against Militarism in Our Schools (CAMS), JROTC Stats for 2006-7 School Year, May 2008,
available at http://www.militaryfreeschools.org/jrotc.htm#jrotc.
54
Houppert, supra note 16.
55
Department of Defense, Reserve Officers’ Training Corps (JROTC) Program, Instruction No. 1205.12,
Feb. 6, 2006.
56
Coalition against Militarism in Our Schools, supra note 55.
57
New York Civil Liberties Union, Letter to Principal, Hutchinson Central Technical High School, Oct. 4,
2005, available at http://milrec.nyclu.org/letters/greco-original.pdf.
58
Id.
51

14

JROTC spokesperson Paul Kotakis admitted to The Nation magazine that some
schools have made JROTC programs mandatory, noting, “’In some instances, some
academic institutions have decided that JROTC is so worthwhile that they have made it
mandatory… So when all the students attending the school are required to attend JROTC,
the ‘academies’ are created—and that is a decision made by the individual school, not the
Army.’” 59 Three such military academies exist in Chicago, Illinois, and as of 2005, 18
percent of students at these schools enlisted in the armed services upon graduation. 60 In
fact, Chicago, Illinois public schools are home to the largest JROTC program in the
country. Graduating eighth-graders [typically 13 years old] bound for Chicago high
schools may join one of 45 JROTC programs, including three full-time Army military
academies, five “school-within-a-school” Army JROTC academies, and one JROTC
Naval academy. 61
c. Middle School Cadet Corps (MSCC), or Pre-JROTC, Targets
Children as Young as 11
The JROTC oversees the Middle School Cadet Corps (MSCC), in which children
ages 11 to 14 can participate. 62 The military has invited children as young as 11 to join
MSCC, or pre-JROTC, programs at their elementary and middle schools. 63 Florida,
Texas, and Chicago, Illinois offer military-run after-school programs to sixth-, seventh-,
and eighth-graders. 64 In Chicago alone, about 26 MSCC programs are offered. 65 These
programs involve drills with wooden rifles and military chants. Students learn first-aid,
civics, character development, and military history. They take field trips to local military
bases and students wear their uniforms to school for inspections once a week. 66
d. Armed Services Vocational Aptitude Battery (ASVAB) Targets High
School Children Under 17
The Armed Services Vocational Aptitude Battery (ASVAB) is a skills and
guidance test provided, funded, graded, and often administered by the U.S. military.
Over 14,000 high schools nationwide administer this test to juniors, typically ages 16 and
17. 67 The ASVAB is administered to high school juniors and seniors as a method of
targeting potential recruits and obtaining students’ personal information, and as a way to
gauge students’ aptitude for military service. The U.S. Army encourages high school
juniors and seniors to take the test to “identify and explore potentially satisfying
occupations,” yet the U.S. Army Recruiting Command’s “School Recruiting Program
Handbook” states that the purpose of the ASVAB actually is to “[p]rovide the field
59

Houppert, supra note 16.
Id.
61
National Network Opposing Militarization of Youth, JROTC, supra note 16.
62
Wedekind, supra note 16.
63
Houppert, supra note 16.
64
Id.
65
Wedekind, supra note 16.
66
Id.
67
Ron Jacobs, Let the Pentagon Pay Off those Loans: Lies Military Recruiters Tell, COUNTERPUNCH,
March 5/6, 2005.
60

15

recruiter with a source of leads of high school seniors and juniors qualified through the
ASVAB for enlistment into the Active Army and Army Reserve,” and to provide the
recruiter “with concrete and personal information about the student.” 68
Few students are aware that the ASVAB is not mandatory. Anecdotal evidence
also suggests that students often are not informed that the ASVAB is a military test. For
example, in Fremont High in South Central Los Angeles, California, students did not
realize it was a military test until they arrived to take the exam and saw that proctors were
uniformed; nine students who refused to take the exam were suspended from school. 69 In
addition, pursuant to military guidelines, students have no control over the information
gained from the ASVAB exam. Instead, school principals control the student information
extracted by the ASVAB, and principals have a range of options to control the level of
privacy of the information gathered from the ASVAB exam. These options include
releasing student information to the military for recruitment purposes or retaining it for
exclusive use by the school or student. 70
e. “America’s Army” Video Game Is a Recruitment Tool That Targets
Children as Young as 13
The Army uses an online video game, called “America’s Army,” to attract young
potential recruits at least as young as 13, train them to use weapons, and engage in virtual
combat and other military missions. Video game-players complete obstacle courses,
learn how to fire realistic Army weapons such as automatic rifles and grenade launchers,
and learn how to jump from airplanes. 71 As of September 2006, 7.5 million users were
registered on the game’s website. 72 As of February 2005, the Pentagon was investing
about $6 million each year in the video game. 73
Launched in July 2002, the video game is a recruitment tool that aims to generate
recruits. 74 According to Army personnel testimony before the Senate Armed Services
Committee, the goal of the then-new recruiting effort that included the “America’s
Army” video game was to penetrate youth culture and get the Army into a young
person’s “consideration set.” 75 The game’s website features a link to the Army’s main
recruiting website. According to a survey of recruits at Fort Benning, Georgia, the
Army’s video-game development team found that about 60 percent of recruits had played

68

U.S. Army Recruiting Command, School Recruiting Program Handbook, supra note 22, at p. 6, para. 62(a), 6-5(a).
69
Houppert, supra note 16.
70
U.S. Military Entrance Processing Command (USMEPCOM) Regulation 601-4 § 3-2(a) available at
http://www.mepcom.army.mil/publications/pdf/regs/r-0601-004.pdf.
71
White, supra note 19.
72
Patrik Jonsson, Enjoy the Video Game? Then Join the Army, CHRISTIAN SCIENCE MONITOR, Sept. 19,
2006.
73
Schiesel, supra note 19.
74
See Id., White, supra note 19; Jacob Hodes and Emma Ruby-Sachs, ’America’s Army’ Targets Youth,
THE NATION, Aug. 23, 2002.
75
Hodes & Ruby-Sachs, Id.

16

“America’s Army” more than five times a week, and four out of 100 said they had joined
the Army specifically because of the game. 76
“America’s Army” explicitly targets boys 13 and older. 77 On the video game’s
official webpage, in response to the frequently asked question “Should Children 13+ Be
Exposed to What the Army Does?,” the Army developers argue it is suitable for children
as young as 13, stating, “In elementary school kids learn about the actions of the
Continental Army that won our freedoms under George Washington and the Army’s role
in ending Hitler’s oppression. Today they need to know that the Army is engaged around
the world to defeat terrorist forces bent on the destruction of America and our
freedoms.” 78 As quoted by the New York Times, the video game project’s deputy director
stated, “We have a Teen rating that allows 13-year-olds to play, and in order to maintain
that rating we have to adhere to certain standards… We don’t use blood and gore and
violence to entertain. That’s not the purpose of our game… We want to reach young
people to show them what the Army does, and we’re obviously proud of that. We can’t
reach them if we are over the top with violence and other aspects of war that might not be
appropriate. It’s a choice we made to be able to reach the audience we want.” 79
II.

WIDESPREAD FAILURE TO APPLY SAFEGUARDS FOR
RECRUITMENT OF YOUTH UNDER 18 (Article 3(3))

Article 3(3) of the Optional Protocol requires that non-compulsory recruitment of
youth under the age of 18 meet the following four criteria:
a.
b.
c.
d.

Such recruitment is genuinely voluntary;
Such recruitment is carried out with the informed consent of the person’s
parents or legal guardians;
Such persons are fully informed of the duties involved in such military
service;
Such persons provide reliable proof of age prior to acceptance into national
military service. 80

The U.S. submitted a binding declaration setting 17 as the minimum age for voluntary
military recruitment. 81 This provision allows the military to enlist 17-year-olds through
Deferred Enlistment Contracts, but this recruitment must take place under the above four
stringent conditions required by the Optional Protocol.
This provision is meant to safeguard the rights of the many 17-year-olds the U.S.
military enlists and the many more the military recruits. While it is impossible to
76

Jonsson, supra note 74.
See America’s Army website, “Frequently Asked Questions: Should Children 13+ Be Exposed to What
the Army Does?” available at http://www.americasarmy.com/support/faqs.php?t=9&z=62#62; White,
supra note 19; Hodes & Ruby-Sachs, supra note 76; Schiesel, supra note 19.
78
America’s Army website, Id.
79
Schiesel, supra note 19; Hodes & Ruby-Sachs, supra note 76.
80
Optional Protocol, supra note 1, at art. 3(3).
81
Ratifications and Reservations, Optional Protocol, supra note 2, at para. (A).
77

17

estimate the number of youth under 18 who are subjected to military recruitment, the
U.S. armed forces does maintain statistics tallying the number of 17-year-olds who enlist
or sign Deferred Entry Program contracts. In Fiscal Year 2006, 18,321 17-year-old
recruits joined the U.S. armed forces: 7,428 into the active armed forces (5,828 boys and
1,600 girls) 82 and 10,893 into the reserve forces (8,003 boys and 2,890 girls). 83
According to the U.S.’s initial report to the Committee, about 7,500 new enlistees each
year are still only 17 when they ship to basic training. 84
Government and media studies and information from other sources strongly
indicate that the U.S. military is failing to ensure that military recruitment of children
under 18 is genuinely voluntary and fully informed, and is carried out with the informed
consent of the youth’s parents or guardians. Documented misconduct by recruiters,
including coercion, deception and sexual abuse, nullify the voluntariness of youths’
recruitment. Limitations on 17-year-olds who have changed their minds about enlisting
and wish to withdraw from the Delayed Entry Program amount to involuntary
recruitment. A provision of the No Child Left Behind Act of 2001, and school districts’
failure to notify parents of their rights under the Act, have resulted in recruiters carrying
out recruitment without parental consent. The U.S. military’s practice of targeting lowincome youth and students of color, in combination with exaggerated promises of
financial rewards for enlistment, undermines the voluntariness of recruitment.
a. Coercion, Deception, Abuse, and Other Misconduct by Recruiters
Nullify the “Voluntariness” of Recruitment
Documented misconduct by recruiters, including coercion, deception and sexual
abuse, nullify the voluntariness of youths’ recruitment, in violation of the Optional
Protocol’s requirement that recruitment be “genuinely voluntary.” 85 Deception and false
promises by military recruiters also indicate that during recruitment, some youth are not
fully informed of the duties involved in military service, as required by the Optional
Protocol. 86
Wartime enlistment quotas have placed increased pressure on military recruiters
to fill the ranks of the armed services. As the conflict in Iraq entered its third year in
2005, the Marines missed their monthly recruiting benchmarks in January through March
for the first time in a decade, and the Army failed to meet its annual recruiting quota for
the first time in six years; the National Guard also fell short. 87 In 2007, the Army again
fell short of its recruiting goals for two straight months. 88 The added strain of fulfilling
82

Office of the Under Secretary of Defense, Personnel and Readiness, “Population Representation in the
Military Services, Fiscal Year 2006,” Table B-1, available at
http://www.defenselink.mil/prhome/PopRep_FY06/pdf/AppendixB.pdf.
83
Id. at Table C-2.
84
U.S. Department of State, Initial Report, supra note 7, at para. 21.
85
Optional Protocol, supra note 1, at art. 3(3)(a).
86
Id., art. 3(3)(c).
87
Hayasaki, supra note 26; Thom Shanker, Army, Shedding a Slump, Met July Recruiting Goal, N.Y.
TIMES, Aug. 11, 2007.
88
Shanker, Id.

18

enlistment quotas in wartime has arguably contributed to the rise in allegations of
misconduct and abuse by recruiters.
Reports of these incidents became so numerous that in 2006, Congress called for
an investigation of military recruitment tactics by the United States Government
Accountability Office (GAO), an independent and nonpartisan federal agency charged
with studying the programs and expenditures of the federal government. In a report of its
findings, the GAO documented at least 6,600 allegations of recruiter wrongdoing in fiscal
year 2005, a 50 percent increase from the previous year. 89 Reported acts of recruitment
misconduct, defined as “willful and unwillful acts of omission and improprieties that are
perpetrated by a recruiter…to facilitate the recruiting process,” include “overly
aggressive [recruitment] tactics, such as coercion and harassment,” false promises, and
failure to obtain parental consent. 90 Criminal violations such as sexual harassment of
prospective recruits numbered 70 in 2005, an increase from 30 in 2004. 91 The GAO also
noted that the “service data likely underestimate the true number of recruiter
irregularities” due to poor tracking and reporting. 92
Reports by the media have also documented coercion, deception, and other
misconduct by recruiters. According to a study conducted by the Associated Press in
2005, one in every 200 military recruiters was disciplined for sexual misconduct toward
potential recruits, most of whom they met in the victims’ high schools. 93 In the cases
documented by the Associated Press, the victims typically were between the ages of 16
and 18, and they generally were considering enlisting. 94 The sexual misconduct included
raping on recruiting office couches and groping en route to military entrance exams. 95
The Associated Press also found that 722 Army recruiters were accused of rape and
sexual misconduct between 1996 and 2006. 96 For example, in March 2005, a recruiter
for the Indiana National Guard was charged with sexually assaulting at least six young
women aged 17 to 21, most high school students he had enlisted in the military; he later
pled guilty to sexual battery charges. 97
According to the New York Times, in 2004 the Army investigated 1,118
recruiters—nearly one in every five of all recruiters—for “recruiting improprieties,”
ranging from threats and coercion to making false promises to young people that they
would not be sent to Iraq. 98 The Army substantiated 320 investigated offenses in 2004
89

GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at p. 4.
90
Id., at pp. 2, 3, 30-33.
91
Id., at p. 4.
92
Id.
93
Martha Mendoza, AP Probe Looks at Recruiters’ Misconduct, ASSOCIATED PRESS, Aug. 20, 2006.
94
Id.
95
Id.
96
Id.
97
James A. Gillaspy & Dan McFeely, Recruiter Accused of Sex Assaults; Counts Against Guardsman
Involve 6 Young Women, INDIANAPOLIS STAR, Mar. 1, 2005; Midwest: Indiana: Recruiter Charged With
Rape, N.Y. TIMES, Mar. 2, 2005; Derrick Thomas, Recruiter Admits Sexually Battering Female Students, INDIANA 6
NEWS, Oct. 11, 2007.
98

Damien Cave, Army Recruiters Say They Feel Pressure to Bend Rules, N.Y. TIMES, May 3, 2005.

19

alone. 99 The Department of Defense substantiated almost 630 cases in 2005, a rise from
just over 400 substantiated cases in 2004. 100 An analysis of Army records by the New
York Times showed that allegations of impropriety in recruitment have increased sharply,
doubling to 1,023 in 2004, from 490 in 2000. 101 A 2005 Department of Defense internal
survey revealed that “about 20 percent of active duty recruiters believe that [recruitment]
irregularities occur frequently.” 102
Recruiters’ deceptive and false promises to prospective recruits also indicate that
recruiters do not fully inform recruits of the duties involved in military service. For
instance, an ABC News and WABC undercover investigation found recruiters in New
York intentionally misinforming students about the requirements and realities of
enlistment. 103 Hidden cameras caught recruiters telling potential recruits that the United
States was not at war, and that a potential recruit could simply leave the military if he or
she did not like it. 104 Another television news camera captured a military recruiter in San
Diego, California inaccurately portraying the nature of military service to students,
stating, “I mean, where else can you get paid to jump out of airplanes, shoot cool guns,
blow stuff up, and travel seeing all kinds of different countries?” 105 Sarah Fiaz, an
incoming senior at Richmond Hill high school in New York, told the New York Civil
Liberties Union: “A recruiter told me…that I wouldn’t have to actually fight in Iraq, only
work in an office in the U.S. for the military. But most kids don’t know the truth about
what recruiters are saying.” 106
Most cases of recruiter misconduct go unpunished. In 2004, the Army relieved of
duty only 3 of every 10 recruiters who were found to have committed improprieties
intentionally or through gross negligence. 107 Due to lack of transparent and wellpublicized complaint mechanisms, recruiter misconduct also likely is underreported.
Recruiters and some senior Army officials have estimated that for every instance of
recruiter misconduct that is found, at least two instances are never uncovered. 108 In a
survey of nearly 1,000 students at 45 New York City high schools, the New York Civil
Liberties Union and the Office of Manhattan Borough President Scott Stringer, “[n]early

99

Id.
GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at p. 4.
101
Damien Cave, For Army Recruiters, a Hard Toll from a Hard Sell, N.Y. TIMES, Mar. 27, 2005.
102
GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at p. 2, citing Department of Defense, Defense Human Resources Activity, Joint Advertising,
Market Research and Studies, 2005 Recruiter Quality of Life Survey, Topline Report, JAMRS Report No.
2006-002 (Arlington, Va.: February 2006).
103
See Army Recruiters Accused of Misleading Students to Get Them to Enlist, WABC NEWS, Nov. 3,
2006.
104
Id.
105
News Hour with Jim Lehrer, High School Recruiting, PBS television broadcast, Dec. 1, 2004.
106
NEW YORK CIVIL LIBERTIES UNION AND MANHATTAN BOROUGH PRESIDENT SCOTT STRINGER, WE
WANT YOU(TH)!, supra note 28, at p. 21.
107
Cave, Army Recruiters Say They Feel Pressure to Bend Rules, supra note 100.
108
Id.
100

20

half of respondents (45%) at selected schools reported that they did not know to whom
they should report military recruiter misconduct.” 109
U.S. military policies mandating enlistment quotas likely contribute to recruiter
misconduct that violates the Optional Protocol. In its study of recruiter misconduct, the
GAO concluded that data shows that due to monthly quotas for enlistment contracts, the
number of recruiter irregularities may increase as the end of the monthly recruiting cycle
approaches. 110 For instance, the Department of Defense Military Entrance Processing
Command analyzed data from a Chicago, Illinois processing station, and found that
Army recruiting irregularities predictably increased as the end of the monthly recruiting
cycle approached and recruiting goals are tallied. 111 Recruiters disclosed to the New York
Times that in order to meet recruiting quotas, and in some cases with the encouragement
of their commander, recruiters had violated recruitment rules. 112
The Department of Defense’s recruiter evaluation and compensation systems—
incentive-based policies that tie recruiter performance review and compensation to
numbers of students enlisted—likely are contributing factors to the prevalence of
recruiter misconduct. According to the GAO study, the Army, Navy, and Air Force
evaluate recruiters on their ability to achieve monthly goals for contracts to bring
applicants into the Delayed Entry Program, the means of signing up youth who are
ineligible to enlist because they have not yet completed high school. 113 In addition to
these performance evaluations, all of the armed services provide rewards to recruiters that
are based on the number of enlistment or Delayed Entry Program contracts that a
recruiter writes. 114 These rewards include “medals and trophies for recruiter of the
month, quarter, or year; preferential duty stations for their next assignment; incentives
such as paid vacations; and meritorious promotion to the next rank.” 115
b. Threats Against 17-Year-Olds Wishing to Withdraw from the
Delayed Entry Program (DEP) Amounts to Involuntary Recruitment
The Delayed Entry Program (DEP), also known as the Future Soldiers Training
Program, allows 17-year-olds to join the military’s inactive reserves with an agreement to
report to active duty at a specified future date. 116 The DEP enables recruiters to enlist
children who would otherwise be ineligible to commit to military service because they

109

NEW YORK CIVIL LIBERTIES UNION AND MANHATTAN BOROUGH PRESIDENT SCOTT STRINGER, WE
WANT YOU(TH)!, supra note 28, at p. 5.
110
GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at pp. 21, 23.
111
Id. at p. 26.
112
Cave, Army Recruiters Say They Feel Pressure to Bend Rules, supra note 100.
113
GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at p. 23.
114
Id. at 25.
115
Id.
116
ATTITUDES, APTITUDES, AND ASPIRATIONS OF AMERICAN YOUTH: IMPLICATIONS FOR MILITARY
RECRUITMENT, supra note 23, at 98-100.

21

are still in high school. 117 In its initial report to the Committee, the U.S. Government
states that “virtually all 17-year-olds who enter the U.S. Armed Forces are high school
seniors and are placed in the Delayed Entry Program until after they earn a high school
diploma,” after which they enter basic training.118 Most youth who enlist are signed up
into the DEP for up to a year before they report for active duty training. The U.S. Army
markets this program as “a great option for students that still have to finish high
school.” 119
Counter-recruitment groups have documented serious recruiter misconduct in
which recruiters threatened youth who have joined the DEP and subsequently changed
their minds about enlisting. Groups have documented cases in which recruiters
threatened youth with jail time, inability to find a job, and dishonorable discharge if they
withdrew from the DEP. According to the Youth Activists – Youth Allies (Ya-Ya)
Network, a New York City-based counter-recruitment group, “Over the years, we have
had reports from students who were told that if they change their minds, they would be
considered deserters in war time and could be hunted down and shot. A student we know
deliberately failed to graduate in June rather than choose between (nonexistent) penalties
or being forced into the military. When the school quietly readmitted him this Fall, the
recruiter restarted his harassment and threats.” 120 The Ya-Ya Network also recalls, “A
young woman in the Bronx had 2 MP’s [military police] stationed outside her parents’
home, causing her mother to suffer a nervous collapse. One young woman was told that if
she didn’t go through with her enlistment that her family would be deported. When we
contacted a recruiter about our concerns, he threatened to have us arrested by the FBI.” 121
Rick Jahnkow, then of the Committee Opposed to Militarism and the Draft,
recalled, “We were once contacted by a high school student who was trying to get the
Marines to let him out of the Delayed Entry Program. At one point, two Marine recruiters
went to his workplace and verbally harassed him. The Marines only left after his boss
threatened to physically remove them. He was eventually released from the DEP, but not
until after his school principal threatened to ban all Marine recruiters from the campus —
a tactic that, unfortunately, can no longer be used because of a new federal law
mandating recruiter access to schools.” 122
According to Bill Galvin of the Center on Conscience and War, “A young man in
the Delayed Entry Program (DEP) changed his mind about enlisting. The recruiter said to
him that Sept. 11 changed everything — ‘If you don’t report, that’s treason and you will
be shot.’” 123 Galvin reported that in another case, when a young man wished to withdraw
117

Lila A. Hollman, Children’s Rights and Military Recruitment on High School Campuses, 13 U.C. DAVIS
J. INT’L L. & POL’Y 217, 225 (2007).
118
U.S. Department of State, Initial Report, supra note 7, at para. 16.
119
See http://www.us-army-info.com/pages/dep.html#dep.
120
Youth Activists – Youth Allies (Ya-Ya) Network, “Delayed Entry Program / Future Soldiers Program,”
available at http://www.yayanetwork.org/dep.
121
Id.
122
Project on Youth and Non-Military Opportunities (YANO), “Recruiters Lie,” Draft NOtices, Nov.-Dec.
2004, available at http://www.projectyano.org/pdf/Recruiters_DEP_2004.pdf.
123
Id.

22

from the Navy DEP in upstate New York, his recruiter “drove him to a military entrance
processing station a couple of hours away, then put him up in a hotel and told him,
‘Tomorrow morning you’re off to boot camp.’” 124 According to Galvin, the same
happened with an individual in the DEP in Virginia, who was similarly driven to a
processing station in Baltimore and left stranded.125
The Department of Defense’s recruiter evaluation and compensation systems
likely are contributing factors to the prevalence of recruiter threats to youth who wish to
withdraw from the DEP. According to a GAO study of recruiter misconduct, Army
civilian contractor recruiters receive approximately 75 percent of their monetary
compensation for recruiting an applicant when a youth enters the DEP, and receives the
remaining 25 percent of their compensation when the applicant enters basic training. 126
Marine Corps recruiter evaluation standards hold recruiters accountable when applicants
withdraw from the DEP before entering basic training. 127
c. The No Child Left Behind Act Violates the Parental Consent
Provision of the Optional Protocol
The federal No Child Left Behind Act (NCLB) of 2001 grants military recruiters
unprecedented access to public high schools and to students’ personal information.
Section 9528 of the NCLB permits recruiters to obtain students’ personal information
without obtaining prior parental consent and guarantees recruiters’ access to public high
schools for recruitment purposes without parental consent. As such, Section 9528 of the
NCLB violates Article 3(3)(b) of the Optional Protocol, which requires recruiters to carry
out recruitment with informed parental consent. 128
A brief clause added to the NCLB funding benefits provision, Section 9528,
requires school districts receiving certain federal funds (in effect, nearly all public high
schools) to provide the military with student information, including students’ names,
addresses, and telephone numbers. 129 The NCLB also requires schools to provide
military recruiters with the same level of in-school access to secondary students as they
provide to other post-secondary recruiters, such as higher educational institutions and
prospective non-military employers.
The NCLB conditions funding under the Elementary and Secondary Education
Act of 1965 on providing the military equal access to high school campuses as job and
college recruiters and allowing disclosure of student information to military recruiters
without prior parental consent. The NCLB also allows the federal government to
124

Id.
Id.
126
GAO, DOD and Services Need Better Data to Enhance Visibility Over Recruiter Irregularities, supra
note 21, at p. 24.
127
Id.
128
Optional Protocol, supra note 1, at art. 3(3)(b).
129
20 U.S.C § 7908(a)(2) (providing that “each local educational agency receiving assistance under this
Act shall provide, on a request made by military recruiters or an institution of higher education, access to
secondary school students’ names, addresses, and telephone listings”).
125

23

withhold crucial aid from a state if even one school within that state does not provide the
United States military with access to its students. These provisions have the intended
effect of forcing schools not only to open their doors to recruiters, but also to provide the
military with millions of students’ information for inclusion in an extensive military
database.
Since the passage of the NCLB, the United States Department of Education has
threatened to deny funding to states in which schools have blocked military recruiter
access. For instance, although the Parent and Teachers Association of a public high
school in Seattle, Washington voted in May 2005 to ban military recruiters from the
school, the school district could not implement a ban without losing at least $15 million
in federal education funds. 130 This pressure from the federal-level has resulted in state
education departments threatening disciplinary sanctions at the local school level. 131
The passage of the NCLB changed the landscape of military recruitment in public
high schools across the United States. Recruiters use the lists of students’ names and
contact information provided pursuant to the NCLB to cold-call students for hours each
day. 132 In the years since the enactment of the NCLB, many educators, students, and
parents have complained about the military’s harassment of students, violation of
students’ privacy, and targeting of poor students and students of color.
Section 9528 of the NCLB does enable students and their parents to individually
“opt out” of this requirement by affirmatively requesting that their school withhold their
personal information from the military. Under the law, “[a] secondary school student or
the parent of the student may request that the student’s name, address, and telephone
listing…not be released without prior written parental consent, and the local educational
agency or private school shall notify parents of the option to make a request and shall
comply with any request.” 133
In addition, while the law provides for an opt-out procedure, many school districts
do not have a clear process in place by which to do this. The safeguard rests entirely on
the efforts of local school officials: the opt-out procedure only works if school districts
inform parents in a timely manner and effectively instruct parents on how to opt out, and
federal and state governments provide no meaningful enforcement mechanism. In an
effort to fill this gap, and due to a range of related concerns about student rights, safety
and educational integrity, many local jurisdictions have adopted more restrictive military
recruitment guidelines within their districts.

130

Damien Cave, Growing Problem for Military Recruiters: Parents, N.Y. TIMES, June 3, 2005.
See letter from U.S. Deputy Secretary of Education William D. Hansen and U.S. Undersecretary of
Defense David S. C. Chu to state education superintendents nationwide, July 2, 2003 (on file with the
ACLU); see also letter from California State Superintendent Jack O’Connell to 24 California school
districts determined not to be in compliance with NCLB opt-out provision, Aug. 21, 2003 (on file with the
ACLU).
132
Cave, For Army Recruiters, a Hard Toll from a Hard Sell, supra note 103.
133
20 U.S.C § 7908(a)(2).
131

24

ACLU affiliates have found that many school districts throughout the U.S. have
failed to adequately inform parents and students of their rights. To fill this void, some
ACLU affiliates and other non-governmental organizations have called on school districts
to institute effective policies to inform parents of their rights and enable them to exercise
this right, and have published materials to inform students and parents of their rights with
regard to military recruitment in schools, especially raising awareness about the right to
submit “do not consent” forms, and providing sample “do not consent” and “opt-out”
forms. 134
For instance, in New Mexico, the ACLU of New Mexico sued the Albuquerque
Public Schools department in August 2005 for failing to properly notify parents of their
option to prohibit public schools from directly sending their children’s contact
information to military recruiters. The ACLU charged that the school district’s practices
violated students’ privacy and due process rights, as well as provisions of the NCLB. 135
In particular, the ACLU found that the Albuquerque Public Schools were failing to
provide meaningful and timely notice to parents of public high school students that they
or their children can request that their private identifying and contact information not be
released to military recruiters. Even worse, the ACLU found that the public high school
was disclosing students’ private contact information to military recruiters before parents
had an opportunity to request their children’s private contact information not be released
to military recruiters.
In a survey of nearly 1,000 students at 45 New York City high schools, the New
York Civil Liberties Union and the Office of Manhattan Borough President Scott Stringer
found that two in five respondents (40 percent) at selected schools did not receive a
military recruitment opt-out form at the beginning of the 2006-2007 academic year, in
violation of New York City Department of Education guidelines. 136 An additional one in
three respondents (33 percent) was unsure if their school provided them with an opt-out
form at the start of the year. 137 Of the 25 percent of respondents who reported receiving
opt-out forms, more than one-third (34 percent) indicated that no one from their school
explained the form or their right to withhold personal information from recruiters. 138 The
parent of a high school freshman in a New York public school told the New York Civil
Liberties Union, “When I was informed about NCLB and the opt out provision, I was
stunned. I would never have known that my child was open to this type of recruitment or
that [recruiters] would be getting our information… I don’t like the idea that somebody
would be contacting him independent of me, especially at such a young and vulnerable
age.” 139
134

A “do not consent” form is a request to remove a student’s name from the Department of Defense’s
JAMRS database.
135
ACLU of New Mexico, Press Release, ACLU of New Mexico Sues School District for Violating Privacy
Rights of Students and Parents, May 6, 2005, available at
http://www.aclu.org/studentsrights/gen/12853prs20050506.html.
136
NEW YORK CIVIL LIBERTIES UNION AND MANHATTAN BOROUGH PRESIDENT SCOTT STRINGER, WE
WANT YOU(TH)!, supra note 28, at p. 4.
137
Id. at p. 16.
138
Id. at p. 17.
139
Id.

25

About a dozen families in a city near East Los Angeles, California accused the
school district of failing to properly advise parents of their right to deny recruiters access
to their children’s personal information. 140 Sam Coleman, the father of a student at
Fountain Valley High School in Southern California, encountered numerous obstacles to
opting out of the military database. 141 In late 2002 he asked the school district how he
could preserve his son’s privacy, and in 2003 and 2004 he submitted additional opt-out
requests, but during his son’s senior year, the school district included his son’s personal
information in records given to the military. 142 As a result, military recruiters called his
son several times and sent near daily military mailings. Coleman told the ACLU of
Southern California, “My son and I had talked and together we decided to ask the school
district not to turn over his personal information to the army. When that didn’t happen it
was very difficult to fix it, and for all I know his information could be floating around in
any number of databases. If there’s a policy in place this won’t happen to other parents
and their children.” 143
The ACLU of Arizona conducted an informal telephone survey of 28 school
districts across the state of Arizona in 2006, and found that many did a poor job of
distributing information to parents about how the opt-out procedure works. 144 The
ACLU found that opt-out forms were typically buried in lengthy student code handbooks
that were sent home with the students, and were often overlooked by parents. 145 The
ACLU also found that procedures varied greatly among school districts statewide, and
made it difficult for students and parents to keep their information private. For example,
many schools imposed strict deadlines, leaving parents who miss the deadline with no
alternative other than to have their children’s information released without approval.
Other schools required an “all-or-nothing approach” that excluded students who opt out
of military recruiting from also sharing their information with colleges and yearbook
companies. 146
The ACLU of Rhode Island conducted a survey of school district practices across
the state of Rhode Island to assess how compliance with the opt-out provision of the
NCLB was being handled. The ACLU found that many school districts were not fully
protecting the privacy rights of students in interactions with military recruiters. The
survey revealed that opt-out procedures varied greatly among school districts, and that in
some communities, including Providence, opt-out policies had still not been

140

Cave, Growing Problem for Military Recruiters: Parents, supra note 132.
ACLU of Southern California, Press Release, ACLU/SC Calls on Area School Districts to Maintain
Students’ Privacy, Sept. 1, 2005, available at http://www.aclu-sc.org/News/Releases/2005/101290/.
142
Id.
143
Id.
144
ACLU of Arizona, Press Release, ACLU of Arizona Urges Schools to Inform Parents, Students of Right
to Withhold Disclosure Of Student Information From Military Recruiters, Aug. 15, 2006, available at
http://www.acluaz.org/News/PressReleases/08_15_06.htm.
145
Id.
146
Id.
141

26

formulated. 147 The ACLU found that a number of school districts did not use opt-out
forms, but instead simply notified parents about their opt-out rights in newsletters or
student handbooks, which were likely to be overlooked. 148 Other school districts used
all-purpose opt-out forms, instead of forms limited to the military; thus, parents were not
given a choice of, for example, allowing directory information to be provided to
institutions of higher education, but not the military. 149 The ACLU also found that some
school districts provided very short, unreasonable deadlines for parents to respond to optout requests. 150 Also striking was the ACLU’s finding that one of the law’s most crucial
features had been inadequately conveyed by almost every district in the state. The law
allows not just parents, but also high school students themselves, to prevent the automatic
release of directory information to the military by requiring that his or her parent consent
to that release. Yet none of the schools the ACLU reviewed provided opt-out forms for
use by high school students under 18 years of age. 151
In New Jersey, the ACLU of New Jersey regularly hears from students and
parents who want to learn how to stop their schools from releasing students’ private
information to military recruiters. 152 Because schools have varying systems for notifying
parents, many families never learn of their right to opt out. Others are misinformed about
that right: a representative of the New Jersey Department of Education asserted to local
press that students who opted out of NCLB must also opt out of having their names sent
to colleges for recruitment. 153 Andrew Rinaldi, a senior at Edison High School in
Edison, New Jersey, reported that a recruiter contacted him even after he filed an opt-out
letter. He said the recruiter “mocked his pacifist views,” and he noted, ’They’re
becoming more aggressive.’” 154
Because the opt-out procedure does not amount to any meaningful form of
informed consent by parents, Section 9528 of the NCLB violates Article 3(3)(b) of the
Optional Protocol, which requires parental consent before undergoing recruitment
activities directed at 17 year-olds. School districts’ failure to provide parents and
students with adequate notice of their rights under the law also violates the U.S.’s
obligations under the parental consent provision of the Optional Protocol.
d. Financial Status of Low-Income Youth and Students of Color
Undermines Voluntariness of Enlistment

147

ACLU of Rhode Island, Press Release, Students’ Rights to Withhold Information from Military
Recruiters Not Being Adequately Protected, ACLU Survey Finds, Aug. 31, 2005, available at
http://www.riaclu.org/20050831.html.
148
Id.
149
Id.
150
Id.
151
Id.
152
ACLU of New Jersey, “No Child Left Unrecruited,” available at http://www.aclunj.org/issues/studentyouthrights/nochildleftunrecruited.htm.
153
Id.
154
Maryclaire Dale, Parents Uniting to Keep Military Recruiters from High Schoolers, ASSOCIATED PRESS,
June 17, 2005.

27

The Optional Protocol also recognizes the special needs of youth “who are
particularly vulnerable to recruitment…owing to their economic or social status.” 155 The
U.S. military’s practice of targeting low-income youth and students of color, in
combination with exaggerated promises of financial rewards for enlistment, undermines
the voluntariness of their enlistment, in violation of the Optional Protocol’s requirement
that recruitment be “genuinely voluntary.” 156
African-Americans are overrepresented in the armed services. For example, in
2006 African-Americans represented about 22 percent of the enlisted personnel of the
Army, 157 but constituted only 16 percent of the same-age civilian population. 158
Although Latinos are somewhat underrepresented in the military, their numbers are
increasing rapidly, having jumped about 30 percent in the last decade.159 Defense
Department population studies show that most recruits are from lower socioeconomic
backgrounds, and only 8 percent of recruits have a parent who is a professional. 160
The over-representation of low-income and African-American enlistees in the
military, as well as evidence that the Department of Defense strategically targets students
of color and high schools with lower college attendance rates, are matters of concern. 161
The Department of Defense’s Joint Advertising and Marketing Research and Studies
(JAMRS) division commissioned a study by the National Research Council’s Committee
on Youth Population and Military Recruitment to enhance military recruitment of youth,
examining long-term trends in the youth population and evaluating policy options that
could “improve youth propensity for and enlistment in the military.” 162 Their research
was published in a 2003 report, Attitudes, Aptitudes, and Aspirations of American Youth:
Implications for Military Recruitment. 163 The report finds that “[t]he socioeconomic
characteristics of parents, such as their levels of educational attainment, have a large
effect on the aspirations and decisions of youths.” 164 The report also examined factors
demonstrating propensity to enlist in the armed services, noting that “the two most
155

Optional Protocol, supra note 1, at Preamble.
Optional Protocol, supra note 1, at art. 3(3)(a).
157
Department of the Army Deputy Chief of Staff of Personnel, Army Demographics: FY06 Army Profile,
Sept. 30, 2006, available at http://www.2k.army.mil/downloads/FY06Tri-Fold.pdf.
158
Office of the Under Secretary of Defense, Personnel and Readiness, 2006 Population Representation in
the Military Services.
159
David M. Halbfinger & Steven A. Homes, Military Mirrors a Working-Class America, N.Y. TIMES,
Mar. 30, 2003.
160
Houppert, supra note 16.
161
See Office of the Under Secretary of Defense, Personnel and Readiness, “2006 Population
Representation in the Military Services,” (showing overrepresentation of lower-income enlistees); David
M. Halbfinger & Steven A. Holmes, Military Mirrors a Working-Class America, N.Y. TIMES, Mar. 30,
2003; James Brooke, On Farthest U.S. Shores, Iraq is a Way to a Dream, N.Y. TIMES, July 31, 2005;
Cynthia Tucker, Military Doesn’t Fly Flag of Affluence, ALBANY TIMES UNION, Jan. 27, 2004; Fernanda
Santos, At Bronx Latino Festival, the Army Sponsors the Music, N.Y. TIMES, July 30, 2007.
162
Information formerly available on the JAMRS website at
http://www.jamrs.org/programs/mktrs/nas.php. See also Mike Ferner, Pentagon Database Leaves No Child
Alone, COUNTERPUNCH, Feb. 4/5, 2006.
163
ATTITUDES, APTITUDES, AND ASPIRATIONS OF AMERICAN YOUTH: IMPLICATIONS FOR MILITARY
RECRUITMENT, supra note 23.
164
Id. at 4.
156

28

important predictors were race/ethnicity and college plans. Consistent with previous data,
blacks were more likely than other race or ethnic groups to intend to join while those with
college plans were least likely to indicate a propensity to join the military.” 165 The report
notes that the military’s recruitment strategy for the last decade has been “to fish where
the fish are (let’s go after those with a propensity and try to close the deal).” 166
The U.S. Army Recruiting Command’s Strategic Partnership Plan for 2002-2007
similarly noted that, “Priority areas [for recruitment] are designated primarily as the cross
section of weak labor opportunities and college-age population as determined by both
[the] general and Hispanic population.” 167 Dave Griesmer, a spokesman for the Marine
Corps Recruiting Command, noted to the Los Angeles Times, “’You’re not going to waste
your resources if you’re in sales in a market that is not going to produce...We certainly
don’t discount any school. But if 95% of kids in that area go on to college, a recruiter is
going to decide where the best market is. Recruiters need to prioritize.’” 168
A 2004 study by the Boston Globe found that the U.S. Defense Department
targets schools where students are perceived more likely to join the military, making
minimal effort to recruit students at schools where students are steered to college. 169 This
strategy results in recruiters generally focusing on lower-middle class youth in places
with limited economic opportunities. 170 At targeted schools, military recruiters heavily
recruit high school students at school and at other places teenagers frequent, including
sporting events, shopping malls, and convenience stores. The Boston Globe reported that
recruiters target students at one working-class public high school in Maryland,
chaperoning school dances; distributing key chains, mugs and military brochures in the
school cafeteria; enrolling students in a JROTC class; and repeatedly telephoning
students in an effort to recruit them. 171 In contrast, at a more affluent public school 37
miles away in Virginia, there was no military chaperoning of school events, no ROTC
class, and recruiters limited themselves to a strict quota of visits. 172 Students at the
working-class public high school are about six times more likely than students at the
more affluent public high school to join the military. 173
The Department of Defense’s recruitment marketing research also indicates that
the U.S. military strategically targets black and Latino youth for recruitment. For the
2005 Joint Advertising and Marketing Research and Studies (JAMRS) Direct Marketing
Conference held from February 15-17, 2005, the Department of Defense commissioned
two training sessions for its recruiters on how to market military careers to Latinos and

165

Id. at 200.
Id. at 216.
167
Jorge Mariscal, No Where Else to Go: Latino Youth and the Poverty Draft, POLITICAL AFFAIRS
MAGAZINE, Nov. 2004.
168
Hayasaki, supra note 26.
169
Savage, Military Recruiters Target Schools Strategically, supra note 52.
170
Id.
171
Id.
172
Id.
173
Id.
166

29

African-Americans in particular. 174 PowerPoint training materials obtained from the
Department of Defense website show that these training materials based recruitment
efforts around stereotypes of Latino and African American youth, including adapting
language to mimic “hip hop culture” and to appeal to “hotheaded” Latino culture. 175 As
long as 15 years ago, in 1993, the Army’s Marketing Research Branch were conducting
studies of what they termed “the black prospect market,” in which focus groups were
conducted to study students’ responses to pamphlets, logos, posters, and taglines for a
JROTC expansion program. 176
The Department of Defense insists on collecting racial and ethnic data of 16- and
17-year-olds as part of its JAMRS database. Despite a lawsuit that challenged the
database, the Department of Defense refuses to stop collecting information about
students’ race and ethnicity, likely due to the military’s ongoing efforts to target racial
and ethnic minorities, especially from African-American and Latino communities, for
aggressive recruitment campaigns. 177
In New York, the Army supplied recruiters at high schools with speciallyequipped Humvees, one known as the “African-American Humvee,” and the other as “Yo
Soy El Army Humvee” (I am the Army Humvee), outfitted with plasma television
screens and blasting rock music and meant to appeal to black and Latino students. 178 In
Los Angeles, California, due to concerns that military recruiters target low-income
students and students of color on the campuses of public schools in Los Angeles County,
the American Civil Liberties Union of Southern California and a group of teachers,
parents, and students joined together to demand more information about how the military
recruits public school students. 179 They filed a Freedom of Information Act request with
the armed services to determine the criteria by which recruiters target students and the
tactics and methods recruiters use. 180 Arlene Inouye, a public high school teacher who
joined the coalition said, “We are concerned our students are being targeted.” 181

174

New York Civil Liberties Union, Fact Sheet, Training Materials from the Military and the Department
of Defense, available at http://milrec.nyclu.org/1b.html.
175
See JAMRS/DoD Powerpoint Presentations, Recruiting Hispanics, and Recruiting African-Americans,
downloaded by the New York Civil Liberties Union from http://www.jamrs.org/ (no longer available at this
website); now housed for documentation purposes on the New York Civil Liberties Union server and
available at http://milrec.nyclu.org/1b.html.
176
AMERICAN FRIENDS SERVICE COMMITTEE, MAKING SOLDIERS IN THE PUBLIC SCHOOLS, supra note 48, at
p. 10, citing U.S. Army Marketing Research Branch, Input to Command History, January-June 1993, 1993.
177
New York Civil Liberties Union, Fact Sheet, Training Materials from the Military and the Department
of Defense, supra note 176; New York Civil Liberties Union, Press Release, To Settle NYCLU Lawsuit,
supra note 15.
178
Kate Stone Lombardi, How the Army Gets What it Wants, N.Y. TIMES, Nov. 6, 2005.
179
ACLU of Southern California, Press Release, ACLU and Teachers Seek Answers About Military
Recruiters on Public School Campuses, Mar. 29, 2005, available at http://www.aclusc.org/News/Releases/2005/100845/.
180
Id.
181
Id.

30

Financial incentives such as promises of college aid, signing bonuses, and free
iPods also may induce low-income youth to join the military. 182 Military recruiting
websites market these and other financial benefits of military service. 183 In July 2005,
the Army announced a new incentive package of recruiting bonuses, college funds, and
special pay for certain jobs that it promised could total more than $100,000 for a new
active duty recruit, the New York Times reported. 184 Financial incentives work to boost
recruits: Army officials acknowledged that after failing to meet recruiting goals for two
straight months, the Army met its recruiting quota in July 2007 in part because of a thennew $20,000 “quick ship” bonus, offered to recruits as of July 25 who could report to
basic training by September 30, 2007. 185
Exaggerated or false promises about the financial benefits of enlisting, such as
loans for college, can undercut the voluntariness of youths’ recruitment. In a low-income
urban area of North Philadelphia, Pennsylvania, reservist Joshua Gordy said the promise
of college money led him to join the Army reserves at age 17. He told the Associated
Press that recruiters at his high school promised that he could earn $35,000 for college,
although he has not received the promised financial support. 186 Alberto Gomez, a high
school student in Northern California, reported to the ACLU of Northern California that
at recruitment center, a Navy recruiter made false promises about college aid he would
receive if he enlisted: “I told him I wanted to be an electrical engineer, and that turned
into the main point of our discussion. Everything tied back to how joining the Navy could
help me reach my career goal; but, really, all he wanted me to do was join. He was really
good at making things sound great. As we started to ask questions, his answers sounded
too good to be true; like when we asked about college he promised me about half a
million dollars… Even if I knew that he might be telling lies, it still sounded so good—
money for college, job training, traveling.” 187
III.

DEPLOYMENT OF YOUTH UNDER 18 TO AREAS OF ARMED
CONFLICT AMOUNTS TO DIRECT PARTICIPATION IN
HOSTILITIES (Article 1)

Contrary to the Optional Protocol’s provisions protecting children under 18 from
active service in the military, the United States deploys 17-year-old youth to active
combat zones. At least sixty-two 17-year-olds are known to have served in Iraq and
Afghanistan in 2003 and 2004. 188 In its report to the Committee, the U.S. government
182

See Jonsson, Enjoy the Video Game? Then Join the Army, supra note 74.
See, e.g. http://www.goarmy.com/benefits/index.jsp?hmref=s1 (directed at prospective Army recruits);
http://www.futuresoldiers.com/html/benefits.jsp?menu=familyMember (directed at the parents of future
Army soldiers).
184
Eric Schmitt, Army Likely to Fall Short in Recruiting, General Says, N.Y. TIMES, July 24, 2005.
185
Shanker, supra note 89.
186
Dale, supra note 156.
187
ACLU OF NORTHERN CALIFORNIA, THE TRUTH BEHIND THE CAMOUFLAGE: A YOUTH INVESTIGATION
INTO THE MYTHS & TRUTHS OF MILITARY RECRUITMENT & MILITARY SERVICE 18 (Aug. 2007) available at
http://www.aclunc.org/youth/publications/asset_upload_file610_6754.pdf.
188
The Director of Military Personnel Policy for the U.S. Army stated in a letter to Human Rights Watch
that “’A total of 62 soldiers were 17 years old upon arrival to both Afghanistan and Iraq during 2003 and
2004. These 62 soldiers served in all capacities in the Army.’” Geneva Centre for the Democratic Control
183

31

discloses that approximately 1,500 soldiers each year are 17 when they complete their
basic training and are ready for operational assignment. 189 While the State Department
advised the Army and Navy not to deploy soldiers under 18 following the ratification of
the Optional Protocol, the U.S. Marine Corps and the Air Force were not advised to limit
the use of soldiers under the age of 18 in hostilities. 190
Although the Department of Defense does not disaggregate casualty statistics
beyond the below-22 age category, statistics for the 17-21 age category make clear that
young service members account for a large percentage of casualties in Iraq and
Afghanistan. Between March 19, 2003 and May 3, 2008, 1,196 of 4,059 military
personnel killed in Operation Iraqi Freedom were under the age of 22. 191 Between
October 7, 2001 and May 3, 2008, 93 of 491 personnel killed in Operation Enduring
Freedom (including in Afghanistan) were under the age of 22. 192
Deployment of 17-year-olds to Iraq and Afghanistan amounts to deployment of
underage child soldiers to take direct part in hostilities, in contravention of the Optional
Protocol. In understandings it entered upon ratifying the Optional Protocol, the United
States narrowed it obligation to take all feasible measures to comply with the Optional
Protocol provision banning deployment of youth under 18 to hostilities. 193 The
understanding narrowly defines the United States’ obligation to take only “feasible
measures” as “practicable or practically possible taking into account the circumstances
ruling at the time, including humanitarian and military considerations.” 194 In its report to
the Committee, the U.S. Government argues that Article 1 of the Protocol “recognizes
that in exceptional cases it will not be ‘feasible’ for a commander to withhold or prevent
a solider under the age of 18 from taking part in hostilities.”195 The U.S. Government’s
rationalizations for deploying underage child soldiers to areas of active combat in Iraq
and Afghanistan do not satisfy the plain language or intent of the Optional Protocol.

of Armed Forces, Occasional Paper – №. 8 available at
se2.dcaf.ch/serviceengine/FileContent?serviceID=21&fileid=90BD3ECB-9157-257C-7FEB63057E1E8F8D&lng=en (citing Sean J. Byrne, US Army, letter to Human Rights Watch, Apr. 2, 2004).
189
U.S. Department of State, Initial Report, supra note 7, at para. 16.
190
Navy Justice School Publication, Commanders Handbook, p. 179-180, available at http://www.imef.usmc.mil/MLG/specialstaffsections/SJA/commanderscorner/COMMANDERS%20HANDBOOK.pdf
(instructing commanders to “weigh the mission requirements against the practicability of diverting 17-yearold Marines from combat...” and directing that “...taking all feasible measure to ensure Marines under 18
years of age do not take part in hostilities should not be allowed to unduly interfere with the commander's
primary responsibility of mission accomplishment.”).
191
U.S. Department of Defense, Personnel and Procurement Statistics, Operation Iraqi Freedom: Military
Deaths, available at http://siadapp.dmdc.osd.mil/personnel/CASUALTY/oif-deaths-total.pdf (last visited
on May 7, 2008).
192
U.S. Department of Defense, Personnel and Procurement Statistics, Operation Enduring Freedom:
Military Deaths, available at http://siadapp.dmdc.osd.mil/personnel/CASUALTY/OEFDEATHS.pdf (last
visited on May 7, 2008).
193
U.S. Department of State, Initial Report, supra note 7, at para. 31 (emphasis added).
194
Ratifications and Reservations, Optional Protocol, supra note 2, at para. 2(A).
195
U.S. Department of State, Initial Report, supra note 7, at para. 9.

32

IV.

DETENTION AND TREATMENT OF FORMER CHILD SOLDIERS
AT GUANTANAMO AND U.S.-RUN FACILITIES IN IRAQ AND
AFGHANISTAN (Article 6)

Article 6(3) of the Optional Protocol requires the United States to “take all
feasible measures to ensure that persons within their jurisdiction recruited or used in
hostilities contrary to the present Protocol are demobilized or otherwise released from
service.” It also requires the United States to “accord to such persons all appropriate
assistance for their physical and psychological recovery and their social reintegration.”
At U.S.-run detention facilities in Iraq and Guantánamo, the United States has
detained children suspected of being child soldiers. In Iraq, in 2006 the International
Committee of the Red Cross visited 59 children detained at five places of detention and
controlled by the U.S. or U.K. 196 At the end of September 2005 there were about 200
juveniles held by the U.S.-led Multinational Force. 197 Due to the U.S. troop surge in Iraq
in 2007, the number of juvenile detainees increased from 250 in May 2007 to 800 in
September 2007. 198 U.S. arrests of children in Iraq rose to an average of 100 per month
in 2007, from an average of 25 per month in 2006. 199 The United States has not
recognized these child detainees’ right to rehabilitation and reintegration, nor has the U.S.
recognized their juvenile status, in contravention of international juvenile justice
standards. Amnesty International reported that there are no U.S. or U.K. detention
facilities allocated for children in Iraq. 200 Documents released to the ACLU pursuant to a
FOIA request the ACLU filed in October 2003 and May 2004 for documents concerning
the treatment of prisoners held by the U.S. in detention centers oversea describe abuses
against detainees in Iraq, including an e-mail noting the initiation of an FBI investigation
into the alleged rape of a juvenile male detainee at Abu Ghraib prison in Iraq. 201
Suspected child soldiers captured abroad have been transferred to Guantánamo for
detention and, in some cases, prosecution. According to Department of Defense
documents listing the names and birthdates of hundreds of Guantánamo detainees,
released in May 2006 pursuant to a Freedom of Information Act request filed by the
Associated Press, at least 23 detainees were under the age of 18 at the time of their
transfer to Guantánamo between 2002 and 2004 (see Appendix to this report, detailing
the names and birthdates of these detainees as listed in Department of Defense

196

International Committee of the Red Cross, Annual Report 2006: Iraq, p. 324, available at
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/738E6J/$FILE/icrc_ar_06_iraq.pdf?OpenElement.
197
AMNESTY INTERNATIONAL, BEYOND ABU GHRAIB: DETENTION AND TORTURE IN IRAQ, (Mar. 6, 2006)
available at http://asiapacific.amnesty.org/library/Index/ENGMDE140012006?open&of=ENG-IRQ.
198
Exclusive Tour of Iraqi Youth Detention Center: Military Boosts Detention Programs to Counter al
Qaeda Youth Recruitment, ABC WORLD NEWS, Sept. 6, 2007.
199
U.S. Detains Nearly 800 Juveniles in Iraq, AGENCE FRANCE-PRESSE, Aug. 19, 2007.
200
AMNESTY INTERNATIONAL, BEYOND ABU GHRAIB, supra note 199.
201
Annex B51, E-mail from Chris Zwecker,Criminal Investigation Division, FBI to Robert Mueller,
Director, FBI; Bruce J. Gebhardt, Deputy Director, FBI; and Valerie Caproni, Office of General Counsel,
FBI.

33

documents). 202 In the case of 20 detainees, the date of birth was “unknown.” 203 Other
sources quoted in the media indicate that the number of juveniles detained at
Guantánamo may be as high as 60. 204 Among these prisoners is Mohammed Jawad, a
“child enemy combatant” who was about 16 years old when he was captured in
Afghanistan in late 2002. The U.S. government has held him in Guantánamo for six
years, claiming that he threw a grenade at a U.S. military vehicle in Kabul in wartime, not
that he is affiliated in any way with the Taliban, al Qaeda, or any terrorist group. 205
Jawad vigorously maintains his innocence, and says that Afghan police tortured him into
a confession. Also among the prisoners who were detained at Guantánamo as children is
Omar Khadr.
a. The Case of Omar Khadr, a Child Soldier Detained at Guantánamo
Omar Khadr is a Canadian citizen who has been in Department of Defense
custody since he was 15 years old, and has been detained at Guantánamo since October
2002. Now 21, he is charged with murder, attempted murder, conspiracy, material
support for terrorism, and espionage. The murder charge in Khadr’s case relates to a
2002 incident during a firefight in Afghanistan in which Khadr is alleged to have thrown
a grenade that killed Army Sgt. Christopher Speer. The other charges are based on his
alleged links to, and support for, al-Qaeda—beginning, allegedly, when he was 10 years
old.
Although the Optional Protocol recognizes that juveniles caught up as participants
in armed conflict should be rehabilitated and provided “all appropriate assistance for their
physical and psychological recovery and their social reintegration,” Khadr has reported
that while in U.S. custody he was denied access to a lawyer for more than two years, and
his lawyers argue that he has been subjected to excessively harsh interrogation methods
in violation of international law. Khadr’s lawyers allege that he was shackled in
painful stress positions for hours on end, threatened with rape, used as a “human mop” to
clean up his own urine during one interrogation session, beaten by guards, threatened
with rendition to third countries for the purposes of torture, detained in solitary
confinement for lengthy periods, and confined in extremely cold cells. In a signed, ninepage affidavit filed in March 2008, Khadr charges that he was repeatedly threatened with
rape as an interrogation technique while held both in Afghanistan and at Guantánamo. 206
The U.S. has denied Khadr’s lawyers’ repeated requests for independent psychological
assessment and treatment. 207
Since the system’s inception in 2004, the ACLU has monitored the military
commissions at Guantánamo, including all proceedings relating to Omar Khadr. Khadr
202

Department of Defense, “List of Individuals Detained by the Department of Defense at Guantanamo
Bay, Cuba from January 2002 through May 15, 2006,” May 15, 2006, available at
http://www.defenselink.mil/news/May2006/d20060515%20List.pdf.
203
Id.
204
Celia Perry, Guantanamo’s Dirty Secrets, MOTHER JONES, Feb. 12. 2008.
205
Department of Defense, Press Release, Military Commission Charges Referred, Jan. 31, 2008.
206
Carol Rosenberg, Gitmo Captive: I Was Threatened With Rape, MIAMI HERALD, March 18, 2008.
207
MICHELLE SHEPHARD, GUANTANAMO’S CHILD: THE UNTOLD STORY OF OMAR KHADR 173-174 (2008).

34

was detained for more than three years before he was first charged before a military
commission. In February 2007, Khadr was recharged with serious crimes under the new
military commissions system established by the Military Commissions Act of 2006; in
June 2007 these charges were dismissed; on September 24, 2007 a Court of Military
Commissions Review authorized proceedings to resume in Khadr’s case; and on
November 8, 2007 he was arraigned.
The proceedings against Khadr have been riddled with ethical and legal problems
from the very beginning, as they have allowed the admission of coerced evidence that
may have been obtained through torture, and government prosecutors have not been
forthcoming with exculpatory evidence. 208 ACLU attorneys observed that Khadr’s
Military Commission hearing on November 8, 2007 resulted in revelations that
potentially exculpatory evidence exists and was not shared with the defense. At a hearing
on February 4, 2008, the U.S. government disclosed by mistake this potentially
exculpatory evidence: an interview of a witness to Khadr’s capture in which the witness
describes finding two people alive in the Afghan compound in which Khadr was
captured; the witness also describes shooting and killing the first man before he saw
Khadr. 209 According to Khadr’s military defense counsel, Khadr was then “’shot on
sight’—in the back—twice—while wounded, sitting and leaning against a wall facing
away from his attackers.” 210 The evidence casts some doubt on the U.S. government’s
allegation that Khadr threw the grenade that killed a U.S. soldier during a firefight in
Afghanistan. 211
As a result of a discovery motion filed by Khadr’s defense team in preparation for
his trial, in April 2008 it was revealed that the original videotape documenting the
firefight in the military compound in Afghanistan was found in Guantánamo. Moreover,
as a result of another discovery motion, other U.S. soldier witnesses who were present
near the firefight and who were interviewed by the defense counsel suggested that Army
Sgt. Christopher Speer might actually have been killed by friendly fire. 212 Other
potentially exculpatory evidence that has been withheld from Khadr’s defense team
includes evidence contained in classified U.S. reports handed to the Canadian
government and subject to a legal challenge before the Canadian Supreme Court. 213
In Omar Khadr’s case, the U.S. government has consistently denied him special
protection or treatment on account of his age. The U.S. government’s detention of Khadr
208

See, e.g. Carol Rosenberg, Judge Rebukes U.S., Grants Khadr Motions, MIAMI HERALD, Mar. 14, 2008.
Michelle Shephard, Khadr Secret Document Released by Accident, THE STAR (Canada), Feb. 4, 2008;
Jess Bravin and Alex Frangos, Child Soldier Case Trips Tribunal, WALL ST. JOURNAL, Feb. 7, 2008.
210
United States of America v. Omar Ahmed Khadr, Defense Reply To Government Response to Motion to
For Dismissal Due to Lack of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier
fn 4 (Jan. 31, 2008).
211
Michelle Shephard, Soldier in ‘Shock’ Over Leaked Khadr Report, THE STAR (Canada), Feb. 7, 2008.
212
William Glaberson, Guantánamo Judge Is Urged to Get On With Proceedings, N.Y. TIMES, Apr. 12,
2008; Carol Rosenberg, Khadr Lawyer Floats Friendly-Fire Theory, MIAMI HERALD, Apr. 12, 2008.
213
Carol J. Williams, Guantanamo Detainee Omar Khadr Argues Friendly Fire Might Have Killed Soldier,
L.A. TIMES, Apr. 12, 2008; Carol Rosenberg, Khadr Lawyer Floats Friendly-Fire Theory, MIAMI HERALD,
Apr. 12, 2008; Michelle Shephard, Khadr’s Lawyers Push for Details, THE STAR (Canada), Feb. 15, 2008
209

35

has failed to comport with juvenile justice standards, and the U.S. government’s
prosecution of Khadr has failed to take into account his relative culpability and
vulnerability to outside influences as a child. 214 At a Military Commission hearing in
February 2008, a Department of Justice attorney told the judge that the U.S. government
may prosecute children, regardless of their age, as “unlawful enemy combatants.”
In Khadr’s Military Commission trial on April 30, 2008, a U.S. military judge
rejected a motion by defense attorneys arguing that on account of the fact Khadr was a
child when captured by U.S. forces, the case should be dismissed because Khadr is
entitled to protection and assistance under the Optional Protocol, rather than being
subjected to prosecution. 215 Most recently, at a Military Commission hearing in Khadr’s
case on May 8, 2008, the military judge threatened to throw out the case against Khadr if
evidence pertaining to his interrogation and detention is not turned over to the defense. 216
In its detention and prosecution of juveniles in Guantánamo, the United States has
failed to meet international juvenile justice standards that provide for children to be
treated consistent with their unique vulnerability, capacity for rehabilitation, and lower
degree of culpability. The detention, prosecution, and treatment of Omar Khadr,
Mohammed Jawad, and others who were under 18 at the time of their imprisonment at
Guantánamo or other U.S. facilities in Iraq and Afghanistan plainly violate the United
States’ obligation under Article 6(3) of the Optional Protocol to provide for the
rehabilitation and reintegration of former child soldiers within its jurisdiction.
V.

ASYLUM-SEEKING FORMER CHILD SOLDIERS ARE DENIED
PROTECTION (Article 6(3))

As a major country of destination for asylum-seekers, some of whom were
recruited or used in hostilities abroad, the United States has an obligation under Article
6(3) of the Optional Protocol to ensure the physical and psychological recovery and
social reintegration in the United States of former child soldiers seeking protection.
However, in the cases of some former child soldiers who cannot return to a safe civilian
life in their home countries and are seeking protection in the United States, former child
soldiers who were victims of serious human rights abuses are being excluded from
protection under immigration provisions intended to bar those who victimized them.
As a result, former child combatants may be denied refugee and asylum
protection in the United States because they are deemed “persecutors of others” based on

214

HUMAN RIGHTS WATCH, THE OMAR KHADR CASE: A TEENAGER IMPRISONED AT GUANTANAMO,4 June
2007, available at http://www.hrw.org/backgrounder/usa/us0607/us0607web.pdf.
215
United States of America v. Omar Ahmed Khadr, Ruling on Defense Motion for Dismissal Due to Lack
of Jurisdiction Under the MCA in Regard to Juvenile Crimes of a Child Soldier (Apr. 30, 2008), available
at http://www.defenselink.mil/news/d20080430Motion.pdf. See also Michael Savage, Canadian Becomes
First Child Soldier Since Nuremberg to Stand Trial for War Crimes, THE INDEPENDENT (UK), May 7,
2008; Mike Rosen-Molina, US Military Judge Rules Khadr Not a Child Soldier, JURIST, Apr. 30, 2008.
216
Carol Rosenberg, Judge Threatens to Suspend War Court Trial, MIAMI HERALD, May 8, 2008.

36

the actions they were forced to engage in as child soldiers. 217 Asylum-seekers who have
engaged or assisted in the persecution of others are barred from asylum under provisions
of the Immigration and Nationality Act that make persecution of others a ground for
exclusion from protection. A person who “ordered, incited, assisted, or otherwise
participated in the persecution” of any person on account of his race, religion, nationality,
membership in a particular social group, or political opinion may not be granted refugee
or asylum status. 218
With respect to this bar to asylum, in some cases trial attorneys in the Department
of Homeland Security (DHS) have argued that former child soldier’s actions as a child
soldier form the basis for exclusion under the persecutor bar. DHS trial attorneys have
further argued that no defenses apply, even in cases of child soldiers who were forcibly
conscripted, acted under duress, or did not have any personal involvement in persecution.
In immigration court, the DHS has taken the stark position that a child soldier’s age when
the alleged persecution took place is not relevant, and it has argued that no evidence of
personal involvement in persecution is needed to exclude a former child soldier from
protection. Furthermore, under U.S. immigration law, there is no statutory authority to
waive application of the persecutor bar, even as a matter of unreviewable executive
discretion. 219
For example, having been a child forced to fight on behalf of a government army
or a militia does not exempt a minor from being barred entry into the United States as a
persecutor. As a result, boys and girls abducted by the Lord’s Resistance Army (LRA)
and forced to fight the Ugandan army may be ineligible for refugee protection because
some of the actions they undertook as child soldiers are considered persecutory in nature.
In one case, the Refugee Protection Program of Human Rights First, which
operates one of the largest pro bono representation programs for asylum seekers in the
United States, has been representing a young man who, as a child of 14, was forcibly
conscripted into the army of the government that had previously jailed and tortured
him. 220 For years, the DHS has been opposing a grant of asylum to this young man on
the grounds that the persecutor bar applies. 221 His personal story underscores the
appalling lack of protection to traumatized child soldiers. He was sent to the front where,
under threat of death, he was made to shoot in the direction of people in the distance who
may or may not have been civilians, and does not know if he hit anyone. 222 He says that
another child who refused to shoot was executed in his presence, as was another child
217

See, e.g. HUMAN RIGHTS FIRST, ABANDONING THE PERSECUTED: VICTIMS OF TERRORISM AND
OPPRESSION BARRED FROM ASYLUM,1 2006, available at http://www.humanrightsfirst.info/pdf/06925-asyabandon-persecuted.pdf; Rachel Bien, Nothing to Declare But Their Childhood: Reforming U.S. Asylum
Law to Protect the Rights of Children, 12 J.L. & POL’Y 797 (2004).
218
U.S.C. § 1158(b)(2)(A)(i); 8 U.S.C. § 1101(a)(42).
219
Human Rights First, Testimony of Anwen Hughes, Hearing on Child Soldiers, Before the United States
Senate Committee on the Judiciary Subcommittee on Human Rights and the Law, Apr. 24, 2007, available
at http://www.humanrightsfirst.info/pdf/07424-asy-child-hearing-test.pdf.
220
Id.
221
Id.
222
Id.

37

who tried to escape. He faces the ongoing threat of deportation even as he tries to
recover from the trauma he suffered as a child. 223
In another case, a former child soldier from the Ivory Coast who, at the age of 15,
was conscripted by rebel troops who chopped off his 13-year-old brother’s hand with a
machete, has faced U.S. government opposition to his asylum claim. After escaping two
years after his abduction and conscription, he asked for asylum upon arriving in the
United States at age 17. 224 The DHS detained him in a New Jersey jail, and DHS
attorneys argued that he was barred from asylum under the persecutor bar, despite his
youth and coercion of rebel captors who punished disobedient child conscripts with
death. 225 After he was granted asylum, U.S. Immigration and Customs Enforcement
appealed his case.
In addition, because applications for refugee and asylum protection can take years
to be considered, a former child soldier’s request for protection may be wrongly analyzed
under adult standards because he is an adult at the time the case is adjudicated. Many
Mayan Guatemalan children kidnapped into the military during the civil war are facing
this scenario. 226 Although they applied for asylum protection in the late 1980s and early
1990s based on the persecution they suffered as Mayan child soldiers, their applications
for asylum are being considered only now. 227 Because many of these former child
soldiers are now adults, the U.S. may consider their military service a bar to protection
rather than part of the persecution they suffered as child soldiers.
U.S. law and international refugee law were not intended to bar otherwise eligible
children from refugee and asylum protection specifically because they were abducted by
armed forces and armed groups and forced to engage in combat. 228 Legislation amending
U.S. immigration law to exclude forcibly recruited child soldiers from the category of
people barred from refugee protection as “persecutors of others” is critically needed.
Instead, as of this writing, a bill that could in practice categorically exclude most
former child soldiers from protection is pending before the U.S. House of
Representatives, having passed in the Senate. The Child Soldiers Accountability Act
unanimously passed in the Senate with amendments in December 2007. 229 As of May
13, 2008, the House Judiciary Committee is considering and proceeding to mark up the
223

Id.
Nina Bernstein, Taking the War Out of a Child Soldier, N.Y. TIMES, May 13, 2007.
225
Id.
226
Amnesty International, Testimony of Sarnata Reynolds, Congressional Briefing, Congressional
Children’s Caucus & Congressional Human Rights Caucus, “Stateless Children,” Feb. 15, 2007.
227
Id.
228
For analysis of the international standards for exclusion from refugee status as applied to child soldiers,
see United Nations High Commissioner for Refugees, “Advisory Opinion Regarding the International
Standards for Exclusion from Refugee Status as Applied to Child Soldiers, letter to J. Wells Dixon,” Sept.
12, 2005, available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=440eda694.
229
S. 2135, A bill “[t]o prohibit the recruitment or use of child soldiers, to designate persons who recruit or
use child soldiers as inadmissible aliens, to allow the deportation of persons who recruit or use child
soldiers, and for other purposes.”
224

38

bill, a procedure in which Committee members offer and vote on proposed changes to the
bill’s language.
The bill would make the recruitment or use of children under the age of 15 a
punishable crime, and it provides that individuals who recruit or use children under 15 as
soldiers are inadmissible or deportable under the Immigration and Nationality Act. In
practice the bill would criminalize the recruitment or use of children by other child
soldiers, punishing children for acts committed by them as child soldiers without regard
for circumstances of duress. The immigration provision would exclude from protection
many former child soldiers deserving of asylum protection on account of past persecution
committed against them.
In many conflicts, child soldiers who were themselves forcibly conscripted may
become engaged in the recruitment or command of other child soldiers, often under
duress. Under this bill, these child soldiers—themselves victims of forcible recruitment,
in violation of international law and U.S. domestic policy—would be subject to
prosecution and punishment and would be excluded from protection when seeking
asylum in the U.S. The vague language of the bill, “recruitment or use of child soldiers,”
could also encompass an entire range of innocuous activities conducted by child soldiers,
including non-violent activities. The immigration provision, sections (b), (c), (d), and (e),
would render inadmissible or deportable any former child soldier for an overbroad range
of activities, including the incitement, assistance, or any other participation in the
recruitment and use of child soldiers. This category is so broad that it could include
many day-to-day activities of a child soldier. If passed, the application of the bill would
bring the United States into noncompliance with the United States’ obligation to
rehabilitate and socially reintegrate former child soldiers under Articles 6 of the Optional
Protocol.
VI.

U.S. FAILURE TO RATIFY THE CONVENTION ON THE RIGHTS
OF THE CHILD

The Convention on the Rights of the Child (CRC) is the most comprehensive
treaty on children’s rights. 230 The CRC is the most universally accepted and least
controversial human rights treaty that has been drafted or adopted. Of 195 countries in
the world, 193 countries are parties to this treaty; the United States and Somalia are the
only countries in the world not to have ratified or acceded to this treaty. As a result, the
CRC is not binding on the United States. 231

230

Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. Doc.
A/RES/44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989) (entered into force
Sept. 2, 1990, signed by the U.S. on Feb. 16, 1995).
231
Although the United States has not ratified the Convention on the Rights of the Child, it is a signatory.
As such, it is not generally bound by the terms of the treaty; however, it has the obligation to refrain from
actions which would defeat the treaty’s object and purpose. See Vienna Convention on the Law of
Treaties, concluded May 23, 1969, 1155 U.N.T.S. 331, (entered into force January 27, 1980).

39

The United States was a major and active participant throughout the ten-year
drafting process for the treaty. 232 The final document was adopted unanimously in the
General Assembly, and almost all countries in the world ratified the CRC within the first
twelve months of its adoption. 233 U.S. ratification of the CRC is long overdue.
The CRC reflects the nearly universal recognition of children’s unique human
rights protection needs, and the need to respect and ensure the human dignity of all
children and adolescents. The treaty is founded on the principle that the rights of all
children cannot be fulfilled without governments promoting those rights. It protects the
full range of children’s rights to ensure their survival, well-being and development, while
taking into account the ways their education, housing, health care, mental, nutritional,
and social developmental needs are distinct from adults. The treaty contains a holistic
approach to the rights of children and adolescents, guaranteeing their civil and political
rights, such as their rights to be free from sexual exploitation and to proper treatment
while in detention, as well as their economic, social and cultural rights, such as their
rights to education and health care. The convention encompasses all youth up to the age
of 18.
Provisions of the CRC protect all children and adolescents’ right to the highest
attainable standard of health; right to an adequate standard of living; right to education;
right to freedom of expression, conscience and religion; and it requires countries to take
all appropriate measures to protect the child from all forms of physical or mental
violence, injury or abuse. The treaty also recognizes the special needs of children in the
juvenile justice system and other forms of state custody.
In May 1994, Senator Patrick Leahy addressed the Senate to urge his fellow
senators to co-sponsor the resolution. He explained:
The administration’s resistance [to ratifying the CRC] is due to
misunderstandings about the convention. Opponents claim that it is
antifamily . . . or infringe[s] upon States rights. The [CRC] does none of
these things.
It does create an internationally approved, minimum standard for
protecting children from poverty, abuse, and cruel labor practices. It calls
on nations to affirm the rights of children not to go hungry, to be educated,
and to live without persecution on the basis of gender, race, religion or
creed. In short, it provides a framework around which to build a safe,
healthy, stable environment for our children’s development. 234
232

Cynthia Price Cohen, Role of the United States in Drafting the Convention on the Rights of the Child:
Creating a New World for Children, LOY. POVERTY L.J. 9, 25-26 (1998).
233
T. Jeremy Gunn, The Religious Right and the Opposition to the U.S. Ratification of the Convention on
the Rights of the Child, 20 EMORY INT’L L.R. 111 (2006).
234
140 Cong. Rec. S5963 (daily ed. May 18, 1994), cited in Lainie Rutkow & Joshua T. Lozman, Suffer the
Children? A Call for United States Ratification of the United Nations Convention on the Rights of the
Child, 19 HARV. HUM. RTS. J. 161, 170-171 (2006).

40

In his decision in the U.S. Supreme Court case Roper v. Simmons, eliminating the death
penalty for juvenile offenders, Justice Kennedy wrote, “Article 37 of the United Nations
Convention on the Rights of the Child, which every country in the world has ratified save
for the United States and Somalia, contains an express prohibition on capital punishment
for crimes committed by juveniles under 18…. It is proper that we acknowledge the
overwhelming weight of international opinion against the juvenile death penalty, resting
in large part on the understanding that the instability and emotional imbalance of young
people may often be a factor in the crime. The opinion of the world community, while not
controlling our outcome, does provide respected and significant confirmation for our own
conclusions.” 235 Similarly, Representative John LaFalce introduced a resolution asking
members of the House of Representatives to call for U.S. ratification of the CRC. 236 He
stated, “[t]he United States must now stand and be counted. We must show ourselves to
be truly on the side of peoples seeking freedom, individual liberty, civil rights, and
human dignity.” 237
The time has come for the United States to declare its support for children’s
human rights by ratifying the CRC. In the sentencing of juvenile offenders to life without
parole, in the conditions of confinement to which children are subjected, and in the
inequities of the U.S. education system, to mention few examples, the human rights of
children and adolescents are not fulfilled in the United States. The United States remains
the only country in the world known to either issue the sentence of life without parole for
juvenile offenders or to have children serving life without parole. Until 2005, the United
States was the sole country in the world to condone the practice of execution for capital
crimes committed by juvenile offenders. Children under the age of 18 continue to be
housed with adults in some facilities. Over 17 percent of Americans under the age of 18,
or 12.9 million children, grow up in poverty. 238 The system of education in the United
States is fraught with inadequacies and inequities, with many students of color struggling
in racially isolated, under-funded, and inadequate schools.
a. Juvenile Life Without Parole: Out of Step With the World
The CRC explicitly prohibits sentencing children to life sentences without parole.
Article 37(a) of the CRC states, “Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences committed by persons below
eighteen years of age.” 239 Although the juvenile death penalty was eliminated in the
United States in 2005 by the Supreme Court in the case of Roper v. Simmons, 240 41 states
continue to sentence children to life without parole for crimes committed before they are
235

Roper v. Simmons, 125 S.Ct. 1183 (2005).
H.R. Res. 253, 103d Cong. (1993).
237
Rutkow & Lozman, supra note 236, at 171.
238
U.S. Census Bureau, Press Release, Income Stable, Poverty Up, Numbers of Americans With and
Without Health Insurance Rise, Census Bureau Reports, Aug. 26, 2004.
239
Convention on the Rights of the Child, supra note 232, at art. 37(a).
240
Note that in Roper v. Simmons, the U.S. Supreme Court relied upon Article 37 of the Convention on the
Rights of the Child—the same article that prohibits life imprisonment without parole for juvenile
offenders—to strike the death penalty for juvenile offenders as unconstitutional. Roper v. Simmons, 125
S.Ct. 1183 (2005).
236

41

18 years old. 241 In many states, juveniles can be transferred to adult courts and sentenced
to life without any chance of parole regardless of their age, and without considering the
circumstances of the offense. At least 2,381 people in the U.S. are currently incarcerated
for life without the possibility of parole for crimes they committed as children. 242
The unfairness of imposing an adult punishment on children is heightened by
racial and gender inequities. According to a report by the University of San Francisco
School of Law’s Center for Law and Global Justice, children of color in the U.S. are 10
times more likely to receive sentences of life without parole than white child offenders.
In some states, including California, the rate is 20 to 1. Nationwide, “the estimated rate
at which black youth receive life-without-parole sentences (6.6 per 10,000) is ten times
greater than the rate for white youth (0.6 per 10,000).” 243 In Michigan, the majority
(221) of juvenile lifers are minority youth, 211 of whom are African-American. 244
With 2,381 such cases, the United States is the only country in the world known
to either issue the sentence of life without parole for juvenile offenders or to have
children serving life without parole. Life without parole is theoretically available for
juvenile offenders under eighteen in only ten countries, but all of these countries do not
apply the sentence for minors and have no one who committed their crime while under
eighteen serving life without parole. 245 Until February 2008, Human Rights Watch found
juveniles serving such sentences in only one other country, Israel, which until recently
had seven individuals serving life without parole for a childhood crime. 246 In February
2008, Israeli officials confirmed that children given life sentences are now entitled to
parole review. 247
b. Juvenile Detention Facilities: Warehouses of Problem Children
The CRC requires in Article 37(b) that “the arrest, detention or imprisonment of a
child shall be used only as a measure of last resort and for the shortest appropriate period
of time.” 248 However, the U.S. government continues to detain disproportionate numbers
241

ACLU OF MICHIGAN, SECOND CHANCES: JUVENILES SERVING LIFE WITHOUT PAROLE IN MICHIGAN
PRISONS 3 (2004) available at http://www.aclumich.org/pubs/juvenilelifers.pdf. See also UNIVERSITY OF
SAN FRANCISCO SCHOOL OF LAW, CENTER FOR GLOBAL LAW AND PRACTICE, SENTENCING OUR CHILDREN
TO DIE IN PRISON: GLOBAL LAW AND PRACTICE, (Nov. 2007), available at
http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/LWOP_Final_Nov_30_Web.pdf..
242
Id. at ii.
243
HUMAN RIGHTS WATCH AND AMNESTY INTERNATIONAL, THE REST OF THEIR LIVES: LIVE WITHOUT
PAROLE FOR CHILD OFFENDERS 2 (2005), available at
http://hrw.org/reports/2005/us1005/TheRestofTheirLives.pdf.
244
ACLU OF MICHIGAN, SECOND CHANCES, supra note 243, at 6.
245
UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW, SENTENCING OUR CHILDREN TO DIE IN PRISON, supra
note 243, at 4.
246
HUMAN RIGHTS WATCH, ’WHEN I DIE, THEY’LL SEND ME HOME’: YOUTH SENTENCED TO LIFE
WITHOUT PAROLE IN CALIFORNIA, N. 6 Jan. 2008, available at
http://hrw.org/reports/2008/us0108/us0108web.pdf.
247
University of San Francisco School of Law, Center for Global Law and Practice webpage, available at
http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/Juvenile%20LWOP.html.
248
Convention on the Rights of the Child, supra note 232, at art. 37(b).

42

of children of color in juvenile detention and to rely on incarceration as a means of
addressing children’s social, mental or behavioral issues. In 2005, UNICEF estimated
that one million children and adolescents are in confinement worldwide. 249 In 2003, the
number of juveniles incarcerated in the U.S. alone reached nearly 100,000. 250 According
to the U.S. Bureau of Justice Statistics, in June 2004 an estimated 7,083 persons under
the age of 18 were held in adult jails, accounting for 1% of the total jail population. 251
Once in state custody, children are victimized by sexual abuse, denied adequate
education, denied adequate physical or mental healthcare, subjected to physical and
emotional violence, improperly housed with adult populations, and provided insufficient
contact with their parents and families. Article 37(c) of the CRC guarantees children’s
right to be treated with dignity and in conditions of confinement that take into account the
special needs of children: “Every child deprived of liberty shall be treated with humanity
and respect for the inherent dignity of the human person, and in a manner which takes
into account the needs of persons of his or her age.” 252
Children’s right to counsel in delinquency proceedings is in jeopardy with courts
permitting “waiver of counsel” in such proceedings before a child consults with an
attorney. As a result, American society’s most vulnerable individuals are often left
without any form of defense in an already discriminatory criminal justice system.
Juvenile detention centers in states across the country are rife with problems,
including minority overrepresentation, inadequate attention to the unique issues of girls in
detention, and lack of safety, mental health programming, and rehabilitation services.
The U.S. has failed to recognize the internationally accepted norm, enshrined in Article
37(b) of the CRC, that the arrest, detention or imprisonment of children should be
measures of last resort and applied for the shortest appropriate period of time. 253 Neither
has the U.S. accepted the universal principle that children who have been the victims of
neglect, exploitation, or abuse must receive appropriate treatment for their recovery and
social reintegration, as provided by Article 39 of the CRC. 254 Similarly, the U.S. has
failed to accept the international norm provided in Article 40 of the CRC, which holds

249

UNICEF, THE STATE OF THE WORLD’S CHILDREN: EXCLUDED AND INVISIBLE 41 (2005), available at
http://www.unicef.org/sowc06/pdfs/sowc06_fullreport.pdf.
250
OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, JUVENILE OFFENDERS AND VICTIMS:
2006 NATIONAL REPORT 197 (2006), available at http://ojjdp.ncjrs.org/ojstatbb/nr2006/index.html.
251
HOWARD N. SNYDER & MELISSA SICKMUND, NATIONAL CENTER FOR JUVENILE JUSTICE, JUVENILE
OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT, 236 (March 2006) available at
http://ojjdp.ncjrs.org/ojstatbb/nr2006/downloads/chapter7.pdf.
252
Convention on the Rights of the Child, supra note 232, at art. 37(c).
253
Article 37(b) of the CRC provides that “The arrest, detention or imprisonment of a child…shall be used
only as a measure of last resort and for the shortest appropriate period of time.” In addition, Article 40(4)
provides, “A variety of dispositions, such as care, guidance and supervision orders; counseling; probation;
foster care; education and vocational training programs and other alternatives to institutional care shall be
available to ensure that children are dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offence.” Convention on the Rights of the Child, supra
note 232, at arts. 37(b), 40(4).
254
Id., at art. 39.

43

that children in conflict with the law are entitled to assistance and treatment that promote
their sense of dignity and aims to help them take a constructive role in society. 255
c. Children’s Right to Education: Racial Re-Segregation of Public
Schools and the School-to-Prison Pipeline
The system of education in the United States is fraught with inadequacies and
inequities. More than fifty years after the seminal U.S. Supreme Court decision in Brown
v. Board of Education mandated educational desegregation, many students of color
throughout the U.S. continue to struggle in racially isolated, under funded and inadequate
schools. Too often, schools, especially those with high minority concentrations, do not
have the resources to provide students with an adequate education, and as a result
students fare poorly under the high-stakes testing mandated by federal law, and their rates
of graduation from high school suffer. Minority students are also subjected to
discriminatory discipline, usually for non-violent behavior. Often they have special
educational needs and face policies and practices that channel them out of schools and
into the juvenile and criminal justice systems, often referred to as the “school to prison
pipeline.”
The “school to prison pipeline” manifests itself through systemic policies that
prioritize the incarceration, rather than the education, of children, especially children of
color. At-risk youth, including children with learning disabilities, histories of poverty,
abuse or neglect, and children of color increasingly find themselves pushed out of public
schools through a lack of adequate educational resources, unfair suspensions and
expulsions, the criminalization of minor school misconduct, by being funneled into
“alternative schools” that do not provide adequate educational services, and by racial
discrimination in and by schools. Each of these factors has a disproportionate impact on
children of color. As mentioned above, a part of this “push-out” phenomenon is driven
by the high-stakes testing regime of the NCLB, which creates perverse incentives for
school officials to rid their enrollment of at-risk children who are likely to score poorly
on standardized tests to avoid the sanctions associated with being labeled a “failing
school.”
The U.S. government has made efforts to improve educational disparities in U.S.
public schools, including passage of NCLB, but the Act’s efficacy has been limited by a
number of factors and, together with the rapid re-segregation of schools and the spread of
the “school-to-prison” pipeline phenomenon, public schooling, especially for minorities,
is in a state of crisis. The U.S. Census Bureau projects that by 2050, about 50% of the
U.S. population will be minorities. Given this steep demographic shift, the government
must address the performance of children of color and nature of the schools they attend.
Article 28(1) of the CRC provides for children’s right to education on the basis of
equal opportunity, and it explicitly requires states parties to make higher education

255

Id., at art. 40.

44

accessible to all and to take measures to reduce school drop-out rates. 256 The nearunanimous endorsement of the CRC by countries worldwide indicates international
consensus on the importance of guaranteeing children’s equal access to education.

256

Id., Art. 28(1). Art. 28(1) of the CRC requires that “States Parties recognize the right of the child to
education, and with a view to achieving this right progressively and on the basis of equal opportunity, they
shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational
education, make them available and accessible to every child, and take appropriate measures such as the
introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.”

45

APPENDIX I: Prisoners Detained by the Department of Defense Who Were Juveniles at the Time of Transfer to Guantanamo Bay, Cuba Between
January 2002 and May 15, 2006
Name
ISN
Citizenship
Place of Birth
Date of Birth
1
ABD AL-RAZAQ 'ABDALLAH HAMID IBRAHIM AL-SHA
67 Saudi Arabia
Shaqara, SA
1/18/1984
2
AHMAD, SULTAN
842 Pakistan
Sargodha, PK
11/1/1984
3
AL ANSARI, FARIS MUSLIM
253 Afghanistan
Mukala, YM
1/1/1984
4
AL QARANI, MUHAMMED HAMID
269 Chad
Medina, SA
1/1/1986
5
AL SHIHRI, YUSSEF MOHAMMED MUBARAK
114 Saudi Arabia
Riyadh, SA
9/8/1985
6
AL ZAHRANI, YASSER TALAL
93 Saudi Arabia
Yenbo, SA
9/22/1984
7
ALI BIN ATTASH, HASSAN MOHAMMED
1456 Saudi Arabia
Jeddah, SA
1/1/1985
8
AYUM, HAJI MOHAMMED
279 China
Toqquztash, CH
4/15/1984
9
ESMHATULLA, QARI
591 Afghanistan
Ramsha, PK
1/1/1984
10 GHETAN, ABDUL SALAM
132 Saudi Arabia
Riyadh, SA
12/14/1984
11 HAFEZ, KHALIL RAHMAN
301 Pakistan
Punjab, PK
1/20/1984
12 ISMAIL, MOHAMMED
930 Afghanistan
Dourbeni Village, AF
1/1/1984
JAWAD,
MOHAMED**
13
900 Afghanistan
Miran Shah, PK
1/1/1985
14 KAFKAS, ABDULLAH D.
82 Russia
Prohladsk, RU
1/23/1984
15 KHADR, OMAR AHMED**
766 Canada
Toronto, CA
9/19/1986
16 MUHAMMED, PETA
908 Afghanistan
Gardez, AF
1/1/1985
17 OMAR, MOHAMMED
540 Pakistan
Larkana, PK
1/1/1986
18 QUDUS, ABDUL
929 Afghanistan
Nadali, AF
1/1/1988
19 RAHMAN, MAHBUB
1052 Afghanistan
Khowst, AF
1/1/1985
20 ULLAH, ASAD
912 Afghanistan
Paktia, AF
1/1/1988
21 ULLAH, NAQIB
913 Afghanistan
Zargary Camp, AF
1/1/1988
22 ULLAH, SHAMS
783 Afghanistan
Gulnoom Khan, AF
1/1/1986
23 URAYMAN, SAJIN
545 Pakistan
Gujaranwala, PK
1/1/1984

** Charges were referred to a military commission
Adapted from Department of Defense, “List of Individuals Detained by the Department of Defense
at Guantanamo Bay, Cuba from January 2002 through May 15, 2006,” May 15, 2006, available at
http://www.defenselink.mil/news/May2006/d20060515%20List.pdf

 

 

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