Sanctuary Denied

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

Roman Goergen February 23, 2011

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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