Sanctuary Denied

America’s war deserters face deportation from Canada--and then prison.

Roman Goergen

After 16 years in the U.S. military, nuclear engineer Chuck Wiley sought refuge in Canada to avoid another tour of duty in Iraq. (Photo by: Matthew Hill)

TORON­TO – Once cel­e­brat­ed as a sanc­tu­ary for Amer­i­can sol­diers unwill­ing to fight in Viet­nam, present-day Cana­da, led by a con­ser­v­a­tive minor­i­ty gov­ern­ment, has turned its back on Iraq War desert­ers. The ones who have crossed the bor­der since the 2003 inva­sion live in fear of depor­ta­tion and imprisonment. 

Immigration Minister Kenney, a rising Conservative Party star, sees cracking down on deserters as a way for Canada to demonstrate that it is a reliable U.S. partner.

On a July night in 2006, some­where off the coast of Iraq, Chief Pet­ty Offi­cer Chuck Wiley received an urgent order that would change his life. Stand­ing watch in the propul­sion plant of U.S.-aircraft car­ri­er USS Enter­prise, Wiley, a nuclear engi­neer for the Navy, was told to bring the ship up to full speed for an emer­gency land­ing. Curi­ous about the event, he lat­er went to see the land­ed fight­er plane and found unusu­al dam­age. Noth­ing you would expect from reg­u­lar air com­bat. It looked like the plane had been shot with small arms, not mis­siles or larg­er cal­iber weapons,” recalls Wiley. The Ken­tucky native did what he had learned to do in an ear­ly career stint in army intel­li­gence – get to the truth. He start­ed to ask ques­tions. Soon he found out about Mis­sion Pres­ence, a con­tro­ver­sial strat­e­gy to flush civil­ians out of their homes in order to make it eas­i­er for ground troops to iden­ti­fy insurgents.

The fight­er jets criss­cross over a city in very low alti­tude – just to scare the hell out of every­body. These peo­ple have been liv­ing under the wings of U.S. air­craft for years. They know exact­ly what a fight­er bomber looks like and expect bombs to drop,” says Wiley. Using civil­ian fear as a weapon may be con­sid­ered effec­tive in the plan­ning rooms of the mil­i­tary com­mand, but it is ille­gal under inter­na­tion­al law, Wiley adds. It seemed to me that the struc­ture of this mis­sion was 180 degrees out from what the Gene­va Con­ven­tion requires in terms of the treat­ment of civilians.”

But Wiley wasn’t sup­posed to know about Mis­sion Pres­ence. His supe­ri­ors left him in the dark. I asked ques­tions and they respond­ed, That’s not your job – you don’t have to wor­ry about it.’ At that point I had been in the Army and Navy for 16 years. I thought they owed me a bet­ter answer than that.”

When Wiley con­tin­ued his research, he found he wasn’t alone with his doubts about the legal­i­ty and con­duct of the Iraq War. Peo­ple on the ship con­tact­ed me, say­ing they had ques­tions too; they even want­ed to know about mis­sions that I nev­er thought to question.” 

At the end of his deploy­ment to Iraq, hav­ing infu­ri­at­ed supe­ri­ors (who even accused him of mutiny), Wiley real­ized that he couldn’t con­tin­ue to serve on the USS Enter­prise. To sal­vage his career, Wiley asked for a deploy­ment on anoth­er ship, away from Iraq. I wasn’t look­ing at leav­ing the mil­i­tary at all. I was less than four years away from being able to retire.” A short while lat­er, Wiley’s appli­ca­tion seemed to be suc­cess­ful when he was ordered to the USS George Wash­ing­ton on her way to a new home­port in Japan. But when report­ing for duty at Nor­folk Naval Sta­tion in Vir­ginia, Wiley found out that the ship would only reach Japan after anoth­er tour to Iraq. I said I had no inten­tion of going back there. They replied that my options were to either board the ship or to go to jail.” Wiley had had enough. After coun­sel­ing from the legal aid group GI Rights Hot­line, he left Nor­folk, and, after a brief stopover in his home­town of Frank­fort, Ky., crossed the bor­der into Ontario in Feb­ru­ary 2007. The next day I filed my refugee claim,” Wiley says.

Since then, the nuclear engi­neer has become a main­te­nance work­er at a pri­vate school in Toron­to. Instead of state-of-the-art engines of an Air Force car­ri­er, the 38-year-old keeps one of the city’s old­est hot water boil­ers run­ning. On a clear day, Wiley can see Lake Ontario from the school build­ing. He knows that on the oth­er banks of the lake, in the States, a prison sen­tence of pre­sum­ably three years awaits him. Some of it would be for his refusal to return to Iraq, but the rest would be for talk­ing to the media about his decision.

Depor­ta­tion purgatory

Wiley is one of an esti­mat­ed 150 to 200 desert­ers from the U.S. mil­i­tary who have made their way to Cana­da since the Iraq War began in 2003. Called war resisters” by their sup­port­ers, about 50 of them have offi­cial­ly applied to stay in the coun­try. The oth­ers are in hiding.

With good rea­son. Ever since a Con­ser­v­a­tive minor­i­ty gov­ern­ment came into pow­er in 2006, Prime Min­is­ter Stephen Harp­er has made it clear that he and his par­ty don’t want the for­mer sol­diers to stay. The first refugee-sta­tus appli­ca­tion by an Amer­i­can Iraq War desert­er, Jere­my Hinz­man, was turned down in 2005 under a Lib­er­al gov­ern­ment. But things have got­ten even worse under Con­ser­v­a­tive rule. Every appli­ca­tion by a desert­er, be it for refugee sta­tus under inter­na­tion­al law or – after that fails – for a per­mis­sion to stay for com­pas­sion­ate rea­sons, has either been denied or is pend­ing with lit­tle hope of success.

Accord­ing to a 2008 poll by the inter­na­tion­al pub­lic affairs prac­tice Angus Reid Pub­lic Opin­ion, 64 per­cent of Cana­di­ans favor let­ting the Amer­i­can mil­i­tary dropouts stay. In 2008 and 2009 the Cana­di­an House of Com­mons adopt­ed two non-bind­ing motions stat­ing that desert­ers should be allowed to stay in the coun­try and that pro­vi­sions should be made to legal­ize their sta­tus. Harper’s gov­ern­ment ignored the motions, say­ing that they would only bow to a for­mal bill. That bill, C‑440, was defeat­ed in par­lia­ment in Sep­tem­ber by a mar­gin of 136 to 143 votes – to the delight of the gov­ern­ment, which was quick to declare the vote a con­fir­ma­tion of its hard-line approach towards the deserters. 

Canada’s Min­is­ter of Cit­i­zen­ship, Immi­gra­tion and Mul­ti­cul­tur­al­ism Jason Ken­ney regards the defeat­ed bill as a sig­nal to act. After tak­ing over the min­istry in Octo­ber 2008, Ken­ney was ini­tial­ly curbed by opin­ion polls and the motions in par­lia­ment and deport­ed only four desert­ers. They were arrest­ed after being returned to the Unit­ed States and sen­tenced to the brig by U.S. Army court-martials.

Wiley and oth­ers now expect more depor­ta­tions in quick­er suc­ces­sion – an out­look that is shared by sup­port groups on the oth­er side of the border.

Amer­i­can orga­ni­za­tions, like Iraq Vet­er­ans Against The War (IVAW), have all but giv­en up on Cana­da as a viable option for the desert­ers to find refuge. There is no safe haven in Cana­da. Peo­ple went up there, hop­ing that the gov­ern­ment would respect inter­na­tion­al law. But they didn’t. They shut that option down”, says IVAW Orga­niz­ing Team Leader Aaron Hugh­es, who served in Iraq in 2003. He says that in 2005 the IVAW opened a chap­ter in Toron­to, expect­ing that a big­ger war resister com­mu­ni­ty would grow in the city. But the chap­ter soon dis­ap­peared. Peo­ple sim­ply didn’t stay because there was no sanc­tu­ary,” says Hughes.

IVAW’s approach has nev­er been to active­ly con­vince peo­ple to escape to Cana­da but rather to show them oth­er ways to resist. For those who are deport­ed from Cana­da and arrest­ed in the Unit­ed States, the IVAW tries its best to help them with their court cases.

Chang­ing sympathies

When Bill King remem­bers the events in 1968 that led him to flee from the Amer­i­can Army dur­ing the Viet­nam War, his eyes sparkle with excite­ment. The sto­ry about his escape to Toron­to sounds like an adven­ture. Thanks to the sym­pa­thet­ic stance of the Lib­er­al Cana­di­an gov­ern­ment of that era, cross­ing the bor­der into the big white north was easy.

King recounts how he sneaked out of Fort Dix, in New Jer­sey, when he was about to be shipped to Viet­nam, how he and his wife Chris­tine hid in the woods until the son of a colonel of the camp smug­gled them out in his car, and how they end­ed up hitch­ing a ride to the bor­der with an ex-con and his 14-year-old girl­friend, who were then arrested.

In those days, an esti­mat­ed 50,000 to 80,000 Amer­i­can war resisters flocked to Cana­da, wel­comed into what Prime Min­is­ter Pierre Trudeau called a refuge against mil­i­tarism.” Many stayed on and became promi­nent mem­bers of Cana­di­an soci­ety, like King, who is a jazz musi­cian and artis­tic direc­tor of Toronto’s Beach­es Jazz Fes­ti­val. Even though in Iraq and Viet­nam you were fight­ing a dif­fer­ent kind of boogey­man, there are many sim­i­lar­i­ties – peo­ple just died unnec­es­sar­i­ly in wars that were not need­ed and should have nev­er hap­pened,” says King, 64, who is a vocal sup­port­er of the Iraq war deserters.

Par­al­lels between Viet­nam War resister King and Iraq War resister Wiley abound. Both were born in Ken­tucky to con­ser­v­a­tive fam­i­lies with an extreme com­mit­ment to the mil­i­tary and a long-stand­ing his­to­ry of ser­vice. I had an uncle who par­tic­i­pat­ed in the Kore­an War and my father was in World War Two. You still had that tra­di­tion­al respon­si­bil­i­ty,” says King. Every­body is expect­ed to serve in the mil­i­tary – you don’t ques­tion it.” Wiley traces his family’s mil­i­tary roots back to the War of Inde­pen­dence. I have eight sib­lings. Sev­en served in the mil­i­tary.” Both men were exposed to pro­gres­sive ideas that were alien to their fam­i­lies, and the deci­sions of both men to escape to Cana­da cre­at­ed huge rifts between them­selves and their parents.

But while King suc­cess­ful­ly cre­at­ed a new life for him­self in Cana­da, Wiley’s future in the coun­try is less cer­tain. Immi­gra­tion Min­is­ter Ken­ney sees crack­ing down on desert­ers as a way for Cana­da to demon­strate that it is a reli­able U.S. part­ner. Cel­e­brat­ed by the Cana­di­an news mag­a­zine Maclean’s as Harper’s Secret Weapon” and a ris­ing star of the Con­ser­v­a­tive Par­ty, the 42-year-old Ken­ney has shown lit­tle lenien­cy to the Amer­i­can ex-soldiers.

A first taste of things to come for the desert­ers was Kenney’s intro­duc­tion of Oper­a­tional Bul­letin 202” in sum­mer 2010. The bul­letin con­tains instruc­tions for Cana­di­an bor­der offi­cials to red-flag refugee claims by Amer­i­can desert­ers for spe­cial atten­tion. Immi­gra­tion offi­cials are advised to con­sid­er the ex-sol­diers as crim­i­nal­ly inad­mis­si­ble” into Cana­da. Our posi­tion is clear that Cana­di­an law pro­pos­es stiff penal sanc­tions on those who desert from their vol­un­tary com­mit­ment to the Cana­di­an Forces,” said Ken­ney dur­ing an Octo­ber 2010 press con­fer­ence in Toron­to, dur­ing which he announced the exten­sion of a pro­gram that allows more Iraqis to enter Cana­da as refugees. It would be fun­da­men­tal­ly unfair to cre­ate a dou­ble stan­dard where­by desert­ers from Cana­di­an vol­un­tary ser­vice are impris­oned, where­as Amer­i­cans would be treat­ed as heroes.”

Amnesty Inter­na­tion­al sug­gests that the bul­letin vio­lates inter­na­tion­al law. In a let­ter to Ken­ney, Alex Neve, Amnesty’s sec­re­tary gen­er­al, wrote that it is a vio­la­tion of refugee law to auto­mat­i­cal­ly deem desert­ers inad­mis­si­ble, even if it is an offense, since the Unit­ed Nations High Com­mis­sion for Refugees rec­og­nizes deser­tion for rea­sons of con­science as legit­i­mate grounds for refugee protection.”

Seek­ing asylum

The Amer­i­can desert­ers don’t plan to let them­selves be sent to prison with­out a fight. On a cold win­ter night in Decem­ber 2010, about a hun­dred peo­ple have gath­ered in an East End pub in Toron­to for a war resister fundrais­er. Phil McDow­ell, 33, has invit­ed the pub­lic in order to warn about the pos­si­ble depor­ta­tions and to raise mon­ey for his legal costs. Like Wiley, the Rhode Island native could be deport­ed any day, but also like Wiley, McDow­ell doesn’t fit the war supporter’s cliché of a self­ish young man who joined the Army for quick mon­ey or a free edu­ca­tion and changed his mind when fac­ing a war deploy­ment. McDow­ell ful­filled his four-year con­tract, went to Iraq, endured the harsh real­i­ty of war and was vot­ed Sol­dier of the Month” and Sol­dier of the Quar­ter” for his bat­tal­ion. But then ques­tions start­ed to form in McDowell’s mind. I was dis­turbed by the vio­la­tions of inter­na­tion­al law, the treat­ment and tor­ture of the local pop­u­la­tion and oth­er unlaw­ful things,” the for­mer sergeant says. 

In 2005, McDow­ell returned from Iraq, think­ing his life in the Army was over. We were plan­ning our future with one anoth­er in Austin,” says his wife, Jamine Aponte. The dread­ed stop-loss pro­gram that allowed the U.S. Army to rescind a dis­charge and send for­mer sol­diers back to war shat­tered their dreams, with McDow­ell fac­ing anoth­er 15-month tour in Iraq. That’s when the cou­ple decid­ed to escape to Cana­da, giv­ing up every­thing they had worked for so far.

When McDow­ell filed an appli­ca­tion for asy­lum in Octo­ber 2006 before a Cana­di­an refugee board pan­el, a major part of his legal strat­e­gy was his refusal to fight in an ille­gal war, as the Amer­i­can inva­sion in Iraq was not sanc­tioned by the Unit­ed Nations, and the rea­son giv­en for the inva­sion, the alleged exis­tence of weapons of mass destruc­tion, wasn’t gen­uine. His argu­ment is in line with valid asy­lum claims under inter­na­tion­al law. The U.N. Uni­ver­sal Dec­la­ra­tion of Human Rights states that sol­diers may apply for asy­lum in anoth­er coun­try if they face per­se­cu­tion in their own coun­try for refusal to par­tic­i­pate in an ille­gal war. Thus, an exam­i­na­tion of whether or not a cer­tain war is legal should be a sub­stan­tial part of every asy­lum hear­ing for a deserter.

McDowell’s hear­ing last­ed less than half an hour, because the pan­el refused to exam­ine the legal­i­ty of the Iraq war. Acute­ly aware of the polit­i­cal impli­ca­tions, Cana­di­an author­i­ties fear being put in the posi­tion of declar­ing America’s mil­i­tary actions either legal or illegal.

Anoth­er con­tro­ver­sial point dur­ing the refugee sta­tus hear­ings was an argu­ment raised by Crown attor­neys and lat­er reit­er­at­ed by Canada’s Fed­er­al Court judge Anne McTavish when she presided over Jere­my Hinzman’s appeal against his failed refugee claim. An indi­vid­ual must be involved at the pol­i­cy-mak­ing lev­el to be cul­pa­ble for a crime against peace … the ordi­nary foot sol­dier is not expect­ed to make his or her own per­son­al assess­ment as to the legal­i­ty of a con­flict,” McTavish wrote in her 2006 deci­sion. Sim­i­lar­ly, such an indi­vid­ual can­not be held crim­i­nal­ly respon­si­ble for fight­ing in sup­port of an ille­gal war, assum­ing that his or her per­son­al war-time con­duct is oth­er­wise prop­er.” Wiley bris­tles at the argu­ment: Even Cana­di­an vet­er­ans told me that we have to win this argu­ment because they reject the view that mere sol­diers don’t have the moral com­pass to decide whether or not the orders that have been giv­en are legal or ille­gal. This is a log­ic that turns the Nurem­berg prin­ci­ples upside down.”

At the 1945 and 1946 tri­als in Nurem­berg for atroc­i­ties com­mit­ted dur­ing World War Two, the Unit­ed Nations rec­og­nized that even foot sol­diers can­not jus­ti­fy being part of war crimes on the excuse of fol­low­ing orders. If the pros­e­cu­tors at the Nurem­berg tri­als had fol­lowed the cur­rent log­ic of Cana­di­an refugee board mem­bers and a fed­er­al judge, count­less war crim­i­nals would have had a valid defense by say­ing that they just fol­lowed their orders and couldn’t assess their legality.

Dif­fer­ent the­atre, dif­fer­ent result

Unlike his Cana­da-based coun­ter­parts, for­mer U.S. Spe­cial­ist Andre Shep­herd feels safe. On Novem­ber 27, 2008, the Ohio-native walked into a refugee pro­cess­ing cen­ter in the Ger­man city of Giessen and filed an asy­lum claim. From that moment on, he could no longer be arrest­ed or returned to the Amer­i­can forces sta­tioned in Ger­many. By fil­ing his appli­ca­tion Mr. Shep­herd has evoked the pro­tec­tion of the Gene­va Con­ven­tion. A depor­ta­tion to the Unit­ed States has there­fore been legal­ly ruled out,” says his lawyer, Rein­hard Marx. In addi­tion, a Euro­pean Union direc­tive, bind­ing in Ger­many since 2006, states that a sol­dier refus­ing to par­tic­i­pate in a war that is ille­gal under inter­na­tion­al law must be rec­og­nized as a refugee. Because of that, Ger­man author­i­ties will have to make a judg­ment about the legal­i­ty of the Amer­i­can war in Iraq in order to be able to decide on Shepherd’s claim.

Things for Amer­i­can Iraq War desert­ers in Ger­many are dif­fer­ent than they are in Cana­da. Not sur­pris­ing­ly, Ger­many is acute­ly aware of its past. Ger­man author­i­ties appear to val­ue the Nurem­berg prin­ci­ples more high­ly than their Cana­di­an coun­ter­parts, con­sid­er­ing the refusal of even an ordi­nary foot sol­dier” to par­tic­i­pate in ille­gal actions not only his right but even his duty. Con­se­quent­ly, Shepherd’s chances of being grant­ed asy­lum in his still-pend­ing case are good, accord­ing to legal experts.

For the Amer­i­can desert­ers in Cana­da, things look much bleak­er. Robin Long, who enlist­ed in the Army in 2003 and trained for two years at Fort Knox to become a tank com­man­der, arrived in Cana­da in 2005. Even though he was engaged to be mar­ried and had a Cana­di­an child, in July 2008 Long became the first Amer­i­can desert­er in his­to­ry to be deport­ed from Cana­da. He received a jail sen­tence of 15 months. Since his release, Long has strug­gled to find work due to his sta­tus as an ex-con­vict. Clif­ford Cor­nell, who was deport­ed in April 2009, received a 12-month sentence. 

Typ­i­cal­ly, desert­ers who talk to the media receive harsh­er sen­tences, some­thing the lawyers of their sup­port cam­paign describe as dif­fer­en­tial pun­ish­ment.” Wiley explains: In 2008, I phoned the Navy Legal Ser­vices office at Nor­folk Naval Sta­tion in order to estab­lish what kind of pun­ish­ment to expect. He told me that because I talked to jour­nal­ists I could expect around three years.” Wiley doesn’t regret hav­ing gone pub­lic. If I was just look­ing to cut a deal for a jail term to sit qui­et­ly in a cell, I would have done that in the begin­ning. If you want peo­ple to know what is going on, if you actu­al­ly want to change some­thing, then you can’t do that from a prison cell.” 

If the sit­u­a­tion in Cana­da for America’s desert­ers from the Iraq war is bleak, it is out­right hope­less for those who refused to serve in Afghanistan. Even though reports of abuse and tor­ture in Afghanistan have been doc­u­ment­ed in press reports and by Wik­iLeaks’ doc­u­ment releas­es, the first Amer­i­can war after 911 ben­e­fits from a bet­ter pub­lic image for two rea­sons. First, a direct link between the World Trade Cen­ter attack and orga­ni­za­tions like al-Qae­da oper­at­ing out of Afghanistan could be proven. Sec­ond, the inva­sion of the coun­try was sanc­tioned by the U.N. Secu­ri­ty Council.

Many par­lia­ments that reject­ed a par­tic­i­pa­tion in the Iraq War as ille­gal, like the Cana­di­an and Ger­man assem­blies, sent troops to Afghanistan. As a result, the num­ber of Afghanistan desert­ers in Cana­da who are known to local sup­port groups and not in hid­ing is almost neg­li­gi­ble. The focus of our cam­paign is to call for the gov­ern­ment of Cana­da to make a pro­vi­sion to allow U.S. Iraq War resisters to stay in Cana­da”, says Michelle Robidoux, spokes­woman of the Toron­to-based War Resisters Sup­port Cam­paign. While that is our focus as a cam­paign, some of the sol­diers who have refused to deploy to Iraq have also done a tour of duty in Afghanistan.”

Jere­my Hinz­man, who desert­ed to Cana­da in 2004 after refus­ing deploy­ment to Iraq, served before in Afghanistan. He only decid­ed to leave the Army when con­front­ed with his march­ing orders for Iraq. Inter­views with desert­ers indi­cate that many Amer­i­can sol­diers con­sid­er Iraq as the more moral­ly and legal­ly ques­tion­able war. Army desert­er Daniel Felushko, in a 2004-inter­view with the Los Ange­les Week­ly, put it this way: If it had been Afghanistan, I would have gone, because there was a direct rela­tion­ship with 911. But beyond Sad­dam and Bush’s grudge there’s no rea­son for us to go to Iraq.”

The only remain­ing legal strat­e­gy for Afghanistan desert­ers is to say that per­son­al expe­ri­ences dur­ing their tour shocked them so sig­nif­i­cant­ly that they changed their entire view of mil­i­tary ser­vice and became con­sci­en­tious objec­tors.” But this approach has proven futile with the Amer­i­can mil­i­tary, espe­cial­ly for long-serv­ing soldiers.

Giv­en the unsym­pa­thet­ic stance of the Harp­er Admin­is­tra­tion, dis­il­lu­sioned mem­bers of the Cana­di­an oppo­si­tion, like New Demo­c­rat Mem­ber of Par­lia­ment Olivia Chow, have sug­gest­ed that the only chance left for the desert­ers may be gen­er­al elec­tions and a new gov­ern­ment. For Wiley, McDow­ell and the oth­er Iraq War desert­ers in Cana­da, that may be their best hope.

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