Sunday, March 23, 2008

War Dodgers

There are 304 days until Jan. 20, 2009.

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War Dodgers


Published: March 23, 2008

Next month, the Canadian House of Commons is slated to debate a resolution that would allow conscientious objectors “who have refused or left military service related to a war not sanctioned by the United Nations” to apply for residency in Canada . The phrasing is vague but the intent is not. The war in question is the Iraq war, and the resolution represents the culmination of a four-year debate about what to do with the small but steady stream of American soldiers who have fled across our northern border to avoid fighting in Iraq .

It all began in Jan. 2004, when a young American with a long, serious face walked into the Toronto law office of Jeffry House to ask for help with what was at the time a highly unusual immigration case. The American turned out to be a soldier named Jeremy Hinzman, an infantryman in the Army’s 82nd Airborne Division. He told House that his petition for conscientious-objector status was denied while he was stationed in Afghanistan . He crossed the border into Canada just days before his unit was to be deployed to Iraq . Of the more than 25,000 American soldiers who, according to the United States Department of Defense, have deserted since 2003, the Toronto-based War Resisters Support Campaign estimates that 225 have fled to Canada . (The D.O.D defines a deserter as anyone who has been AWOL for 30 consecutive days or who seeks asylum in a foreign country; desertion carries a maximum penalty of five years’ imprisonment.)

The majority of the deserters in Canada have chosen not to make the authorities aware of their presence. Like any other illegal immigrants, they have settled for invisibility. A few dozen, though, followed Hinzman’s lead. Most found their way to Jeffry House. One young Army medic named Justin Colby read an AOL news posting about Hinzman’s case while stationed in Iraq . He telephoned House from Ramadi and showed up in his office a few months later.

House would eventually represent between 30 and 35 American deserters. Most of them, like Colby, say they joined the military in part out of patriotism. “I thought Iraq had something to do with 9/11,” Colby says, “that they were the bad guys that attacked our country.” But unlike Hinzman, most did not apply for conscientious-objector status. They tend to say they aren’t opposed to all wars in principle — just to the one they were ordered to fight. It wasn’t until Colby arrived in Iraq that he started to see the conflict as “a war of aggression, totally unprovoked,” he says. “I was, like, ‘This is what my buddies are dying for?’ ” Midway through his tour, he decided: “I’m never going to do this again.” He went AWOL the day before his unit left to train for a second deployment. House says that more than two-thirds of his clients have been deployed to Iraq at least once. “One is resisting a third deployment.”

Tens of thousands of American draft dodgers and deserters took refuge in Canada in the late 1960s and early ’70s. House was one of them. He packed up his car and left his home in Wisconsin 38 years ago to start a new life in Canada . The process was simple. “I came to the border and said: ‘I would like to immigrate to Canada . I’m refusing to serve in Vietnam ,’ ” he recalls. Border officials had him type up an application for residency on the spot. “Four weeks later, I got my permanent-resident status.” But times have changed since Pierre Trudeau, then the prime minister, declared Canada “a refuge from militarism.” While Canada is still a relative haven for asylum-seekers, its immigration laws have tightened sharply, and Prime Minister Stephen Harper has been a faithful ally of the Bush administration. (Harper has kept 2,500 Canadian troops in Afghanistan , whose deployment the House of Commons recently extended until 2011.) As a result, the new generation of war resisters find themselves in an uncomfortable squeeze. In today’s Canada , deserters like Hinzman really have only one legal option: to apply for residency as refugees.

“There’s a very clear Canadian precedent for the idea that no soldier has to participate in an illegal war,” House says. That precedent, interestingly enough, is a case in which an Iraqi Army soldier was granted asylum in Canada after fleeing to avoid taking part in the 1990 invasion of Kuwait . But House’s first task was to prove that the Iraq war is illegal. His argument relied largely on his reading of international law. The United Nations High Commissioner for Refugees lays out a slender possibility for relief. Mere disagreement with the “political justification for a particular military action” is not sufficient. The action must be “condemned by the international community as contrary to basic rules of human conduct.” Only in that case can punishment for desertion or draft evasion “be regarded as persecution.”

Juridically, at least, House saw the case as straightforward. A British court had awarded asylum to a Russian deserter of the Chechen war on the same basis. (British case law often influences Canadian jurisprudence.) And there was the precedent of the Iraqi deserter. But convincing the Canadian courts to equate George W. Bush’s occupation of Iraq with Saddam Hussein’s attack on Kuwait was a politically daunting task.

In the end, House never got the chance. He showed up at Hinzman’s first hearing armed with evidence arguing for the illegality of the Iraq war: 13 four-inch-thick binders containing everything from former Attorney General Alberto Gonzales’s memos on the treatment of detainees to Human Rights Watch reports to the British Army’s documentation of civilian deaths at American military checkpoints. In March 2005, the immigration board ruled against Hinzman, insisting that its “authority does not include making judgments about United States foreign policy.”

A Canadian federal court upheld that decision in 2006, interpreting the relevant international law to apply only to high-level policy makers. “The ordinary foot soldier,” the court ruled, “is not expected to make his or her personal assessment as to the legality of a conflict.” All the documents in House’s 13 binders were thus irrelevant. House objected that policy makers are rarely asked to take up arms. But an appeals court ruled against him last April on other grounds.

“The present position is basically Pontius Pilate,” House told me last fall, not long before he hit the end of the legal road. In mid-November, the Supreme Court dismissed his request for an appeal. “It’s a huge loss,” House said at the time. “As far as I’m concerned, it’s the court deciding not to be involved in the controversy.”

The deserters’ fight has since passed out of the courts and into the hazy realm of politics. On Dec. 6, the Parliament’s immigration committee passed the resolution that would give American deserters a chance at residency. The vote broke down along party lines: the four members of the Conservative Party (which is currently in power but lacks a parliamentary majority) voted against it, but they were outnumbered by the seven representatives of the three major opposition parties.

Whether such unity will survive the full House of Commons debate next month remains to be seen. The Iraq war has been immensely unpopular in Canada , and the leaders of the Bloc Quebecois and the left-leaning New Democratic Party have both come out in support of the resolution. But Canadian M.P.’s tend to vote with far more party discipline than their American counterparts, and Stéphane Dion, the head of the Liberal Party, has not yet taken a public stance on the bill. Without his support, its fate is uncertain.

In the meantime, the deserters have little to do but wait. Though the United States Army does issue arrest warrants for deserters, it does not actively track them down; even at home, deserters are most likely to be apprehended if they are picked up for an unrelated offense. According to a State Department spokeswoman, the United States has made no diplomatic efforts to bring deserters home from Canada . And despite the Canadian Supreme Court decision in November, none have yet been deported. But, as House puts it, “the machinery is grinding along.” At least eight deserters, including Hinzman, have received Preremoval Risk Assessment notices, the bureaucratic preludes to actual deportation orders. It’s very unlikely, though, that the government will make any move before the parliamentary vote in April. Even then, the deserters’ supporters say they hope, the government might prefer that this issue disappear. Given the unpopularity of the Iraq war and the Harper administration’s narrow hold on power, “the Conservatives have nothing to gain if this issue becomes very public,” says Michelle Robidoux of the War Resisters Support Campaign.

Undeterred by the Supreme Court ruling, new arrivals are still showing up. Robidoux’s group has added five to its roster in just the last three weeks. For Colby, Hinzman and others, uncertainty in Canada apparently looks better than combat in Iraq . “Every day that I’m here,” Colby says, “I’m glad I’m not in Baghdad .”

Ben Ehrenreich is the author of a novel, “The Suitors,” and has written for L.A. Weekly, Men’s Vogue and The Times Book Review.

Copyright 2008 The New York Times Company

Donations can be sent to the Baltimore Nonviolence Center , 325 E. 25th St. , Baltimore , MD 21218 . Ph: 410-366-1637; Email: mobuszewski [at]

"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs

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