Protecting Youth from Military Recruiters

For background on the origins of the ordinance described below, see also “Countering Military Recruitment in New Ways: In California, Judicial and State Legislative Challenges Loom,” in Peacework, May 2009.

On November 4, 2008, voters in Arcata and Eureka, California, by margins of 73% and 57% respectively, approved ballot initiative ordinances that prohibit the military recruiting of any person under the age of 18.

Specifically, the “Youth Protection Act” makes it an infraction for any military recruiter to initiate contact with minors, within the city limits, for the purpose of recruiting them into any branch of the military. The ordinance doesn’t prevent anyone from choosing to talk with a recruiter.

Recruiters routinely approach kids in their early teens and expound on the great opportunities that await them in the military, often with no mention of the grim realities of war. Preying on the vulnerability of youth is clearly wrong, and it is an issue which can unite people of diverse political views (Editor's note: See Peacework's compilation of abusive military recruiting tactics caught on tape).

Following the success of the measures on Election Day, the Department of Justice, acting on a complaint by the Department of Defense, sued both cities in order to invalidate the ordinances. The Stop Recruiting Kids Coalition obtained pro bono legal assistance for the cities, and throughout the spring and early summer, motions and counter-motions were filed.

In June 2009, after having previously cancelled the scheduled public court hearing for oral arguments, Federal Judge Saundra Armstrong issued her ruling, which invalidated the cities’ ordinances. Her ruling is based on the Supremacy Clause of the United States Constitution, which mandates that the Constitution, laws enacted by Congress, and Ratified Treaties are the “Supreme Law of the Land” and trump any state or local laws.

While the ruling itself was not unexpected, it reads like a word-for-word restatement of the government’s motions and includes no response whatsoever to any of the arguments in support of the ordinance. The attorneys for the City of Arcata believe that, in ruling without allowing oral arguments, the judge also ruled without giving due consideration to the legal filings of the cities. Therefore they are preparing an appeal of the ruling and have extended their offer of pro-bono legal representation through the appeal process. The city councils in Arcata and Eureka have both approved moving forward with the appeal, which was filed in August.

Constitutionally, treaties share with federal law the status of “Supreme Law of the Land.” In 2002, the United States joined over one hundred other nations in ratifying the “Optional Protocol to the Convention on the Rights of the Child, regarding the involvement of children in armed conflict.” This treaty commits signatory nations to the principle that people under the age of 18 should not be recruited into the armed forces. In its signing on to the treaty, the US has reserved the right to recruit 17-year-olds. The cities offered to settle the case by affirming that they will only enforce the Youth Protection Act for minors under the age of 17, but that offer was refused by the DOJ.

The cities are also arguing that the Ninth Amendment to the Constitution grants to the people rights that are not otherwise enumerated in the Bill of Rights. Among these is the right to privacy, which includes the right of parents to protect their children from uninvited and inappropriate advances by anyone, including military recruiters.

Spokesmen for Army Recruiting repeatedly have said that they do not actively recruit anyone who is not eligible for enlistment: that is anyone under the age of 17. Why not codify that stated policy in law?

One goal of an appeal is to get judicial comment on the cities’ arguments that was lacking in Judge Armstrong’s ruling. This will help to develop language that may be used in future local measures or in federal legislation.

In order to better withstand judicial challenge, future ordinances should designate 17, rather than 18, as the minimum age for recruiters to initiate contact with youth, in order to comply with both the Optional Protocol and current claimed policies of military recruiters. Rather than impose penalties on recruiters who violate the ordinance as the current measures do, a proposed ordinance could require that recruiters obtain parental permission before they initiate contact with any youth under the age of 17.

The Stop Recruiting Kids Coalition is urging activists to draft their own local ordinances, with language improved by our experience to be more easily defended from federal challenge. These laws can either be placed before the voters as ballot initiatives or be presented for approval by their city councils. We are currently developing a toolkit with suggested ordinance wording for our website, www.stoprecruitingkids.org.

In addition, we are pursuing a legislative approach, urging congress members to propose federal legislation that sets a minimum age for all military recruiting activities. No such age currently exists in the US Code.

The Peninsula Raging Grannies and friends protest military recruiting videos being shown
at 2,600 Wal-Mart stores nationwide. The protest was held on Memorial Day Weekend 2005 with
signs in Spanish and English. (Image unique to web version of article.) Photo: Brave New Films/Karen H. Robertson

Countering military recruitment has been the primary response to military recruiters who target young people, and it will remain a valuable and necessary tool to oppose the militarization of youth. But if we can pass laws to simply prevent the military recruiting of anyone under 17, we can reduce the hard-sell marketing tactics to which these young people are exposed.

Now is the time to “Stop Recruiting Kids!”

Update: According to the Times-Standard, the Ninth Circuit Court of Appeals in December 2010 upheld the lower court's ruling striking down the ordinances, saying the ordinances were "'unconstitutional under the doctrine of intergovernment immunity' and stated that the cities' 'promise of self-restraint does not affect our consideration of the ordinances' validity.'” Those interested can find a PDF of the full United States v. City of Arcata appeals court decision.