Alan Cunningham, an Analyst at Ernst and Young, discusses the controversial case of the taking of an Afghan refugee child by a Marine couple…
The fall of Afghanistan was a sad end to the longest armed conflict in American history. It resulted in the destruction of a nation-state, over 6 million displaced the world over, and one of the worst refugee crises currently ongoing. For the millions of refugees from the crisis, their trials are far from over.
And for one family of refugees, they must deal with a trial greater than most.
The Baby Doe Case
Recently, the Associated Press reported on the story of a U.S. Marine couple and an Afghan refugee.
In 2019, two years before the fall of Afghanistan in August of 2021, U.S. Special Operations Forces (SOF) launched a raid upon a “remote compound” during which a two-month old was pulled “from the rubble … [suffering] a fractured skull, broken leg, and serious burns.” In the immediate aftermath, a U.S. Marine Corps Judge Advocate’s General (JAG) Captain (now Major) Joshua Mast campaigned “aggressively” to adopt the child for the next two years even as the child was “released back to her family in Afghanistan, a paternal cousin and his wife.”
This included extensive attempts at communications with political officials like former President Donald Trump, former Vice President Mike Pence, and Trump’s Chief of Staff Mick Mulvaney. In addition, they filed requests with the court in their home county in Virginia that the child was a “stateless minor recovered off the battlefield” and that Afghan President Ashraf Ghani “intended to waive jurisdiction over the child.” According to President Ghani’s deputy chief of staff, no waiver ever came through the office.
In February of 2020, when the U.S. Embassy was looking to turn over the child to the child’s family in Afghanistan, the Mast family stated they were looking to have the child come to the United States to seek medical treatment (in spite of the fact that they had in November of 2019 stated the Marine officer and family would “file for adoption as soon as statutorily possible”).
Between February 2020 to August 2021, Mast continued to remain in communication with the family, pressuring them to seek medical attention for the child in the United States. He eventually secured them visas claiming the couple were serving as escorts for a “U.S. military dependent.” Once the Afghan couple and child were in the country, Mast’s attorneys informed the couple the child was legally the Mast’s and took custody. During the event, according to a federal complaint made by the Afghan couple, “Mast shoved [the paternal cousin], shoved him, and left the room.”
Since August of 2021, the child has been with the Mast’s though the paternal cousin and wife filed suit against the Marine family in September of 2022.
The Legality of the Marine’s Actions
Already, this case is incredibly controversial.
It has galvanized many Afghan-American activists and become one of the most discussed issues in the context of the United States and Afghanistan. In an interview with the Middle East Eye, Halema Wali, co-founder of the Afghans for a Better Tomorrow advocacy group stated, “Afghans do not need white saviours who disguise human trafficking as humanitarianism in the name of Christianity.”
The Ministry of Foreign Affairs of the Islamic Emirate of Afghanistan have also voiced their frustration over the case. They made a statement in late October of this year in which they “[consider] this case as worrying, far from human dignity and an inhumane act, and will seriously pursue this issue with American authorities so that the said child is returned to her relatives.”
The exact reasons why the raid resulted in the deaths of many Afghans are still unclear. Mast alleges that “a man detonated a suicide vest” killing five of his six children and that the “mother was shot to death while resisting arrest” while the Afghan legal guardians state the child’s parents were “actually farmers, unaffiliated with any terrorist group.” However, the reasoning behind the raid or the parent’s actions have little weight on this case.
Repeatedly, in the Mast’s own court documents, they describe the child as a “stateless minor”. However, according to members of the Afghanistan Ministry of Labor and Social Affairs under “Afghan law and custom, they had to place the baby with her biological family” and, in the event this was not possible, “a guardianship system called kafala allows Muslims to take in orphans and raise them as family, without relinquishing the child’s name or bloodline” meaning that, for the United States, only Muslim-Americans of Afghan descent are able to adopt children from Afghanistan.
The entire case was further predicated on the belief that the child was stateless. The state judge who granted the Masts the approval for adoption did so only based on the (perceived) fact that the child “remains up to this point in time an orphaned, undocumented, stateless minor.” This could not have been further from the truth, as the Afghanistan government declared the child as an 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 her family were terrorists has yet to be conclusively proven.
Under Virginia law, if this case were to be brought to court, the Mast’s likely could be found guilty of a felony.
According to § 63.2-1217 of the Code of Virginia, “Any person who knowingly and intentionally provides false information in writing and under oath, which is material to an adoptive placement shall be guilty of a Class 6 felony.” In Virginia, a Class 6 felony is technically the least serious, yet is punishable by “a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.” For a military officer, if convicted of a felony charge of any kind, this would likely mean an “other than honorable” discharge under an administrative separation action.
It is well-documented that the child was not stateless. She was a citizen of Afghanistan and considered so by both the Afghan government and the U.S. State Department. The case also reveals a substantial amount of duplicity on the part of the Mast’s. They and their lawyer repeatedly informed high-level officials in the State and Justice departments that they were not intending to adopt the child and were only ensuring she would be medically cared for in the United States. Yet, upon arrival in the U.S., they produced documentation that the child was now theirs and that they would be taking the child from her rightful family.
Furthermore, attorneys from the U.S. Department of Justice and U.S. Attorney’s Office, in a meeting with the Mast’s lawyer (Richard Mast, Joshua Mast’s brother), criticized the court filings by the Masts stating they were “unlawful … deeply flawed and incorrect … [and] issued on a false premise that has never happened.”
The Masts and their attorneys have consistently misled, obfuscated, or otherwise concealed the truth and their true intentions, from the State of Virginia, the U.S. State Department, the U.S. Department of Justice, the Afghan family of the child, and the U.S. Armed Forces. They have proven themselves through their own court documents to be duplicitous and performed their actions in line with an almost religious desire to be seen as saving a child from destitution. In reality, they stole a child from its rightful family and have, up until this point, been able to get away with it.
The wealth of information uncovered by the Associated Press through the court filings made by the Afghan cousin and through the Masts themselves at the very least warrants further investigation by the State of Virginia and, if need be, by the Department of Justice.
The people of Afghanistan and refugees of the nation have been through an incredible amount of pain and suffering over the past year. They have lived through decades of war and political instability and have been forced to leave their country upon the reclaiming of power by the Taliban. What this case shows to Afghan refugees is that their lives, desires, wants, and needs are considered lesser than those of the Americans. And that is truly shameful.
Alan Cunningham is a graduate of both Norwich University and the University of Texas at Austin. He works as an Analyst with Ernst & Young and aims to join the U.S. Armed Forces as a Commissioned Officer.
Suggested citation: Alan Cunningham, White Saviors: The Legality of a U.S. Marine Couple’s Taking of an Afghan Child, JURIST – Professional Commentary, November 13, 2022, https://www.jurist.org/commentary/2022/11/Alan-Cunningham-Afganistan-refugee-marines-adoption/.
This article was prepared for publication by Rebekah Yeager-Malkin, Co-Managing Commentary Editor. Please direct any questions or comments to she/her/hers at firstname.lastname@example.org.
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