Sanctuary Denied

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. 

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 9/11 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 9/11. 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.