White Saviors: The Legality of a U.S. Marine Couple’s Taking of an Afghan Child – JURIST – Commentary

Alan Cunningham, analyst at Ernst and Young, discusses the controversial case of the abduction of an Afghan refugee child by a couple of Marines…

The fall of Afghanistan marked the sad end of the longest armed conflict in American history. This resulted in the destruction of a nation-state, more 6 million displaced around the world, and one of the the worst refugee crises currently in progress. For the millions of refugees from the crisis, their ordeals are far from over.

And for a refugee family, they face a greater ordeal than most.

The baby doe affair

Recently, the Associated Press reported the story of a US Marine couple and an Afghan refugee.

In 2019, two years before the fall of Afghanistan in August 2021, US Special Operations Forces (SOF) spear a raid on an “isolated compound” in which a two-month-old child was pulled “from the rubble… [suffering] a fractured skull, a broken leg and severe burns. Immediately afterwards, a U.S. Marine Corps Judge Advocate General (JAG) Captain (now Major) Joshua Mast campaigned “aggressively” to adopt the child for the next two years even as the child was “released to his family in Afghanistan, a paternal cousin and his wife”.

This included numerous attempts to communicate with politicians like former President Donald Trump, former Vice President Mike Pence and Trump’s Chief of Staff Mick Mulvaney. Additionally, they filed claims in their home county court in Virginia that the child was a “stateless minor recovered from the battlefield” and that Afghan President Ashraf Ghani “intended to renounce to its jurisdiction over the child”. According to President Ghani’s Deputy Chief of Staff, no waiver has ever passed through the office.

In February 2020, as the United States Embassy sought to release the child to his family in Afghanistan, the Mast family declared they were looking to bring the child to the United States for treatment (despite saying in November 2019 that the Navy officer and his family would “seek adoption as soon as the law permits” ).

Between February 2020 and August 2021, Mast continued to stay in communication with the family, urging them to seek medical attention for the child in the United States. He ends up got them visas claiming the couple were serving as an escort for a “US Army addict.” Once the Afghan couple and the child were in the country, Mast’s lawyers informed the couple that the child was legally owned by Mast and took custody of it. During the event, according to a federal complaint directed by the Afghan couple, “Mast shoved [the paternal cousin]pushed him aside and left the room.

Since August 2021, the child has been with the Mast by the paternal cousin and his wife complaint lodged against the Marine family in September 2022.

The legality of the Navy’s actions

Already, this case is incredibly controversial.

It galvanized many Afghan-American activists and became one of the most discussed issues in the context of the United States and Afghanistan. In an interview with the Middle Eastern EyeHalema Wali, co-founder of advocacy group Afghans for a Better Tomorrow, said: “Afghans don’t need white saviors who disguise human trafficking as humanitarianism in the name of Christianity.

The Foreign Ministry of the Islamic Emirate of Afghanistan has also expressed frustration over the case. They made a statement end of October of this year during which they “[consider] this case as worrying, far from human dignity and an inhuman act, and will seriously pursue this file with the American authorities so that the said child is returned to his relatives.

The exact reasons why the raid resulted in the deaths of many Afghans is still unclear. Mast alleges “a man detonated a suicide vest” killing five of his six children and “the mother was shot while resisting arrest”, while Afghan legal guardians say the parents of the child were “in fact farmers, not affiliated with a terrorist group”. “However, the reasoning behind the raid or the actions of the parents carry little weight in this case.

On several occasions, in the Mast’s own court documents, they describe the child as a “stateless minor”. However, according members of the Afghan Ministry of Labor and Social Affairs, according to “Afghan law and custom, they had to place the baby with its biological family” and, in case this was not possible, “a guardianship system called kafala allows Muslims to foster orphans and raise them as a family, without giving up the child’s name or lineage,” meaning that, for the United States, only Muslim Americans of Afghan descent can adopt children from Afghanistan.

The whole case was further based on the belief that the child was stateless. The state judge who granted the Masts permission to adopt did so only based on the (perceived) fact that the child “remains until now an orphaned, undocumented and stateless minor”. This couldn’t have been further from the truth, as the Afghan government said the child was Afghan, she had family in the country who were known to be capable providers (the cousin worked in the medical field and ran an educational institution), and the allegation that his family were terrorists has yet to be conclusively proven.

Under Virginia law, if this case were to go to court, the Masts could likely be convicted of a felony.

According § 63.2-1217 of the Virginia Code, “Anyone who knowingly and intentionally furnishes false information in writing and under oath, which is essential to an adoptive placement, shall be guilty of a Class 6 felony.” In Virginia, a Class 6 felony is technically the least serious, but is punishable by “imprisonment for not less than one year and not more than five years, or, in the discretion of the jury or the court trying the case without a jury, a term of imprisonment not exceeding 12 months and a fine not exceeding $2,500, either or both. For a military officer, if convicted of a felony charge of any kind, it probably means an “other than honorable” discharge in an administrative separation action.

It is well documented that the child was not stateless. She was an Afghan citizen and considered as such by the Afghan government and the US State Department. The case also reveals a substantial amount of duplicity on the part of the Masts. They and their attorney repeatedly informed senior State and Justice Department officials that they had no intention of adopting the child and were only ensuring that she would receive medical treatment in the United States. United. Yet when they arrived in the United States, they produced documents indicating that the child was now theirs and that they would remove the child from his rightful family.

Additionally, attorneys from the U.S. Department of Justice and the U.S. Attorney’s Office, in a meeting with Mast’s attorney (Richard Mast, Joshua Mast’s brother), critical the documents filed in court by the Masts stating that they were “illegal…deeply flawed and incorrect… [and] issued on a false premise that never happened.

Conclusion

The Masts and their attorneys have consistently misled, obscured, or concealed the truth and their true intentions from the State of Virginia, the U.S. Department of State, the U.S. Department of Justice, the child’s Afghan family, and to the US armed forces. . They proved by their own court documents that they were deceitful and performed their actions out of an almost religious desire to be seen as saving a child from misery. In reality, they stole a child from its legitimate family and have so far been able to get away with it.

The wealth of information uncovered by The Associated Press through court documents filed by the Afghan cousin and through the Masts themselves warrants at the very least further investigation by the State of Virginia and, if necessary, by the Ministry of Justice.

The Afghan people and the nation’s refugees have gone through an incredible amount of pain and suffering over the past year. They lived through decades of war and political instability and were forced to leave their country after the Taliban regained power. What this case shows Afghan refugees is that their lives, wants, wants and needs are seen as inferior to those of Americans. And that’s really shameful.

Alan Cunningham is a graduate of Norwich University and the University of Texas at Austin. He works as an analyst at Ernst & Young and aims to join the US armed forces as a commissioned officer.

Suggested quote: Alan Cunningham, White Saviors: The Legality of a US Marine Couple’s Taking of an Afghan Child, JURIST – Professional Commentary, November 13, 2022, https://www.jurist.org/commentary/2022/11/Alan-Cunningham-Afganistan – refugees-marines-adoption/.


This article was prepared for publication by Rebekah Yeager-Malkin, co-editor of comments. Please direct any questions or comments to her at commentary@jurist.org.


The opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the opinions of JURIST’s editors, staff, donors, or the University of Pittsburgh.

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