Two California Municipalities Step Up to Defend Their Law on Military Recruiting
Stuart Nachbar
June 10, 2009
Last November, two Northern California suburbs, Arcata and Eureka, passed similar versions of a Youth Protection Act. The Act is now the focus of a case that is being argued in a San Francisco federal district court.
The Act provides that "No person who is employed by or an agent of the United States government shall… in the execution of his or her job duties, recruit, initiate contact with for the purpose of recruiting, or promote the future enlistment of any person under the age of eighteen into any branch of the United States Armed Forces."
One month after the Act was overwhelming approved by voters in both communities, the U.S. Department of Justice, acting on a complaint from the U.S. Department of Defense notified both municipalities of their intentions to challege this local initiative. Both munipalities are represented by high-profile legal counsel, as well as their in-house attorneys.
Arcata is represented by Brad Yamauchi of the prestigious San Francisco law firm of Minami and Tamaki. This firm won a U.S. Supreme Court case representing Fred Korematsu, a Japanese-America who had refused to be relocated to an internment camp in 1944, and was subsequently convicted for his actions. The firm successfully argued that the conviction was unconstitutional, paving the way for federal reparations for interned Japanese Americans. Their representation is pro-bono for this case.
Eureka is being represented by Dennis Cunningham, a noted San Francisco National Lawyers Guild attorney, famously won a multi-million dollar civil rights case against the FBI and the Oakland Police on behalf of environmental and labor activists Judi Bari and Darryl Cherney.
In pre-trial motions filed with the court, Yamauchi and company argue that United States' recruiting policies are in violation of U.S. law,specifically a treaty, or a protocol, ratified by the U.S. Senate in 2002 concerning the involvement of children in armed conflicts.
The international treaty expressly prohibits children under the age of 17 from being recruited, trained or used in any armed forces. But, U.S. military recruiting manuals clearly target minors for recruitment. However, the federal government has argued that the Act goes beyond the purview of local governments and that military recruitment campaigns serve a vital national interest, maintaining the readiness of the country's armed forces to mount a national defense.
Nonetheless, both legal counsels expect to lose the case. However, Yamauchi et al have argued that many such military recruiting violations are reported annually. One story covering the case states that defense counsels for both municipalities plan to Yamauchi believes that an appeal, should defense counsel lose the case, will be heard in the 9th Circuit Court, and then later in the U.S. Supreme Court.
As the Obama Administration has advanced the nomination of a new Justice, Sonia Sotomayor, and Rep. Mike Honda (D. Ca.) has introduced new legislation in Congress to revise the military recruitment provisions under No Child Left Behind, the outcome of this case may open the door to further legislation to revise military recruiting practices as well as Junior ROTC.
I still argue, as I have in prior posts, that there are solutions which can be adopted by Congress:
Allow direct mail contact-no phone calls- during a student's senior year in high school
Do not allow recruiters to appear in school buildings more than once a semester (as colleges and employers do) and do not allow them to solicit students as they travel to classes.
The military should pay one hundred percent of the costs for Junior ROTC, excluding facilities maintainance that is already handled by the school.
The military instructors should be allowed to recruit only for JROTC at the start of the school year.
I believe these solutions would help preserve a strong military, as well as a better-educated one-all members of our armed forces should be high school graduates--that is easier to train.
At the same time, recruiters would receive sufficient face time with prospective recruits. In addition, no prospective recruit would be denied the opportunity to visit military recruiters at recruiting stations or to speak with a recruiter within the confines of their own home.
I find Brad Yamauchi's argument compelling. It should be addressed in Congress this fall. That would in the best interests of the students in the Class of 2010.
Stuart Nachbar blogs on thought and fiction in education and politics at www.EducatedQuest.com. His new novel, Defending College Heights, is an investigation into the murder of a U.S. Army recruiter within a college community. Learn more at www.DefendingCollegeHeights.com
The Act provides that "No person who is employed by or an agent of the United States government shall… in the execution of his or her job duties, recruit, initiate contact with for the purpose of recruiting, or promote the future enlistment of any person under the age of eighteen into any branch of the United States Armed Forces."
One month after the Act was overwhelming approved by voters in both communities, the U.S. Department of Justice, acting on a complaint from the U.S. Department of Defense notified both municipalities of their intentions to challege this local initiative. Both munipalities are represented by high-profile legal counsel, as well as their in-house attorneys.
Arcata is represented by Brad Yamauchi of the prestigious San Francisco law firm of Minami and Tamaki. This firm won a U.S. Supreme Court case representing Fred Korematsu, a Japanese-America who had refused to be relocated to an internment camp in 1944, and was subsequently convicted for his actions. The firm successfully argued that the conviction was unconstitutional, paving the way for federal reparations for interned Japanese Americans. Their representation is pro-bono for this case.
Eureka is being represented by Dennis Cunningham, a noted San Francisco National Lawyers Guild attorney, famously won a multi-million dollar civil rights case against the FBI and the Oakland Police on behalf of environmental and labor activists Judi Bari and Darryl Cherney.
In pre-trial motions filed with the court, Yamauchi and company argue that United States' recruiting policies are in violation of U.S. law,specifically a treaty, or a protocol, ratified by the U.S. Senate in 2002 concerning the involvement of children in armed conflicts.
The international treaty expressly prohibits children under the age of 17 from being recruited, trained or used in any armed forces. But, U.S. military recruiting manuals clearly target minors for recruitment. However, the federal government has argued that the Act goes beyond the purview of local governments and that military recruitment campaigns serve a vital national interest, maintaining the readiness of the country's armed forces to mount a national defense.
Nonetheless, both legal counsels expect to lose the case. However, Yamauchi et al have argued that many such military recruiting violations are reported annually. One story covering the case states that defense counsels for both municipalities plan to Yamauchi believes that an appeal, should defense counsel lose the case, will be heard in the 9th Circuit Court, and then later in the U.S. Supreme Court.
As the Obama Administration has advanced the nomination of a new Justice, Sonia Sotomayor, and Rep. Mike Honda (D. Ca.) has introduced new legislation in Congress to revise the military recruitment provisions under No Child Left Behind, the outcome of this case may open the door to further legislation to revise military recruiting practices as well as Junior ROTC.
I still argue, as I have in prior posts, that there are solutions which can be adopted by Congress:
Allow direct mail contact-no phone calls- during a student's senior year in high school
Do not allow recruiters to appear in school buildings more than once a semester (as colleges and employers do) and do not allow them to solicit students as they travel to classes.
The military should pay one hundred percent of the costs for Junior ROTC, excluding facilities maintainance that is already handled by the school.
The military instructors should be allowed to recruit only for JROTC at the start of the school year.
I believe these solutions would help preserve a strong military, as well as a better-educated one-all members of our armed forces should be high school graduates--that is easier to train.
At the same time, recruiters would receive sufficient face time with prospective recruits. In addition, no prospective recruit would be denied the opportunity to visit military recruiters at recruiting stations or to speak with a recruiter within the confines of their own home.
I find Brad Yamauchi's argument compelling. It should be addressed in Congress this fall. That would in the best interests of the students in the Class of 2010.
Stuart Nachbar blogs on thought and fiction in education and politics at www.EducatedQuest.com. His new novel, Defending College Heights, is an investigation into the murder of a U.S. Army recruiter within a college community. Learn more at www.DefendingCollegeHeights.com
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