On December 23, 2008, Congress passed the Child Soldiers Prevention Act of 2008. This Act created prohibitions on offering various forms of assistance–particularly military assistance– to countries that recruit or use child soldiers (generally a child under 18 in most circumstances).
Recently, the media () has been jumping on the story that President Obama has exercised his authority under Section 404(c) of the Act to waive penalties for selected countries. In a Memorandum to the Secretary of State, President Obama noted that it was in the “national interest” of the United States to do so and instructed the Secretary to issue a memorandum of justification (“Memo”).
President Obama’s action has significantly limited the effect of the Act. One commentator went so far as to characterize the move as “undercutting” the Act. Al-Jazeera reports that although the State Department identifies six countries as having used child soldiers in 2009, only Myanmar and Somalia failed to obtain a waiver (and Myanmar does not receive military aid from the United States).
The justifications invoked by the State Department Memo rest on national interest grounds. Chad is an illuminating example. The Memo explains that restrictions on assistance would “hinder” efforts to “reinforce positive trends” by the government to comply with the prohibition on child soldiers, “harm the cooperative relationship” in the Trans-Sahara Counter Terrorism Partnership program, and impact Chad’s ability to provide security support to the 280,000 Sudanese refugees Chad hosts in response to the Darfur crisis. The discussion of impacts lingers, however, on funding for officer professionalism training, English language programs, and airforce program requirements, and does not specifically discuss how cut-off of such funding would impact any of the three main identified issues. The Memo concludes that penalties under the Act would cause “harm to the long-term bilateral relationship . . . [that would be] disproportionately large relative to the amount of funding in question.”
But the application of the Act inevitably impacts the bilateral relationship between the United States and any would-be donee country. It cannot be that Congress did not anticipate such a possibility when it enacted the Act. Does the Act anticipate the President waiving penalties because, in some instances, bilateral relationships are more important than our concern over the use and recruitment of child soldiers?
Another wrinkle is that the Act allows some leeway for countries that are taking steps to eliminate the use of child soldiers. The Memo specifically states that the United States and Chad are taking active steps to reduce and ultimately eliminate the use of child soldiers. Section 404(d) of the Act states that the President may “provide to a country assistance otherwise prohibited” if the President certifies that that country’s government has: (1) implemented measures (including an action plan) to come into compliance; and (2) implemented polices and mechanisms to prevent future use of child soldiers. If Chad really is taking active steps to reduce the use of child soldiers, then why did the President opt for a “national interest” (404(c)) waiver? It is true that 404(d) is titled “reinstatement of assistance,” but the text does not obviously require that assistance must have been barred first, before the section can be applied.
404(d) seems like a more logical section to use, instead of a sweeping “national interest” justification that is tenuously based, at least in the case of Chad, on harm to our bilateral relationship.