Sanctuary & Counseling for War Resisters




O

n May 15, International Conscientious Objectors
Day, a delegation of concerned Californians visited the Canadian
Consulate in San Francisco to appeal for sanctuary for U.S. war
resisters in Canada. The visit was coordinated by Courage To Resist,
Project Safe Haven, and the Central Committee for Conscientious
Objectors (CCCO). The delegation included military veterans, a Catholic
priest, an expert on international law, and resisters of U.S. wars,
present and past. Four delegation members had lived in Canada during
the Vietnam War. 


The delegation delivered a letter to Peter MacKay, Canada’s
Minister of Foreign Affairs, and Monte Solberg, Minister of Citizenship
and Immigration. The letter was received by Tristan Landry, Consul,
Political/Economic Relations and Public Relations, who listened
respectfully as each of his visitors stated their support for sanctuary
for U.S. war resisters in Canada. 


Delegation members gave a brief overview of the plight of U.S. war
resisters in Canada, telling the Canadian Consul that several hundred
AWOL GIs were estimated to be in Canada, and that 25 of them had
applied for political refugee status. The first two, Jeremy Hinzman
and Brandon Hughey, had their claims for refugee status denied,
but their cases were being appealed in Canada’s Federal Court
system. 


Jacqueline Cabasso, executive director of the Western States Legal
Foundation, argued that the U.S. war in Iraq was illegal. “It
must be opposed not only as a matter of law, but as a matter of
principle,” she said. 


Several Vietnam War resisters spoke about Canada’s traditional
role, in the words of former Prime Minister Pierre Trudeau, as a
“refuge from militarism.” Keith Mather, Evangeline Lantana
Mix, and Steve Grossman each thanked Canada for providing them with
a viable alternative to going to war or to prison during the Vietnam
War. 








Father
Louis Vitale, who recently finished a six-month prison sentence
for peacefully protesting the School of the Assassins at Fort Benning,
Georgia, was nonetheless passionate about supporting the troops.
“Our military people are really in danger,” said Father
Vitale. “They’re really at high risk. Some of them are
threatening suicide, or are on the border of suicide. Some of them
are tortured in prison. Some of them give in and do go to Iraq and
do get killed. They really need the humanity that exists in Canada
to accept them and give them sanctuary.” 


Jeff Paterson, an organizer for Not In Our Name, said, “During
the first Gulf War, I was a United States Marine. “I considered
that war unjust and immoral and I applied for a discharge as a Conscientious
Objector. The Marine Corps told me I was sincere, but not sincere
enough. I quickly found myself serving months in the military brig. 


“Political persecution is a reality for people opposing the
war within the U.S. military,” continued Paterson. “That’s
why a safe haven in Canada is a necessity. It’s not a theoretical
thing; it’s not a political stunt we’re trying to do.” 


One after another, members of the delegation explained how the current
system for applying for Conscientious Objector status was inadequate
and arbitrary. Very few GIs are granted this status, just enough
for the military to claim there is an “alternative.” Many
soldiers are never told of their option to apply for Conscientious
Objector status. Or they are told that COs are cowards and homosexuals
to be scorned and abused. 


Some GIs do manage to apply for CO status, a serious process of
soul-searching and intensive writing, only to have their applications
“lost” or “thrown away” by the military. Others
wishing to apply for CO status have been told to wait until after
they are in Iraq or Afghanistan. 


In 2004 Sergeant Kevin Benderman, a 10-year Army veteran, returned
from the Iraq War and became a Conscientious Objector. The Army
violated its own procedures, denied him CO status, and ordered him
to Iraq. Benderman refused to return. Last July he was given a General
Court Martial, usually reserved for high crimes. He was convicted
of “missing movement” and sentenced to 15 months in prison
and received a Dishonorable Discharge. 


Delegation members also explained that the U.S. military grants
Conscientious Objector status only to those who can prove they are
opposed to all wars, such as religious pacifists. This narrow definition
does not take into account a soldier’s obligations under international
law. 



AWOL: A Counseling Memo 



T

he War Resisters Support Campaign in Toronto
has been actively supporting U.S. war resisters in Canada since
early 2004, helping them and their families find lawyers, housing
and jobs, and coordinating hundreds of media and speaking engagements,
benefit concerts, and a national petition campaign calling on the
Canadian government to provide sanctuary for all war resisters.
The Campaign supports individual war resisters who are currently
seeking political refugee status in Canada, and closely monitors
the progress of all relevant legal proceedings. 


For over two years now, AWOL U.S. soldiers, sailors, and marines
have been arriving in Canada, most of them after receiving orders
to deploy (or re-deploy) to the Iraq War. So far, not one of them
has been deported to the U.S.  


The Pentagon estimates there are about 8,000 AWOL GIs in the U.S.
With proper counseling, some have been able to gain administrative
discharges from the military. Canada’s immigration laws have
tightened considerably since the Vietnam War, when as many as 100,000
U.S. citizens moved to Canada. Current regulations require would-be
immigrants to apply from outside Canada, to have much needed job
skills and/or substantial financial resources, and to wait up to
two years for a response. 








The
only exceptions are where the U.S. citizen is married to a Canadian
citizen or is a permanent resident (“landed immigrant”)
or is the son/daughter of a parent who has Canadian citizenship
or permanent residency. 


Privates Jeremy Hinzman and Brandon Hughey arrived in Canada in
early 2004 and became the first two U.S. war resisters to seek political
refugee status in Canada. In 2005, they both were denied refugee
status by the same single member of Canada’s Immigration and
Refugee Board, Brian Goodman. But, in a promising legal victory,
Canada’s Federal Court agreed to hear Hinzman’s and Hughey’s
appeals, based in part on Goodman’s refusal to allow evidence
of the illegality of the U.S. war in Iraq. 


Canada’s Federal Court heard Hinzman and Hughey’s appeal
on February 8, 2006. The appeals were denied by a decision handed
down on March 31, 2006. Justice Anne Mactavish said that while high-level
policy makers could argue the war violates international law, it’s
not clear whether soldiers can make the same claim for refugee status. 


Because Canada’s Federal Court has agreed that their arguments
are sufficiently solid to merit careful consideration, Hinzman and
Hughey may be allowed to appeal all the way to Canada’s Supreme
Court, if necessary. This process, which will ultimately bear on
the refugee claims of other AWOL GIs, may take years, during which
time Hinzman and Hughey will be allowed to live and work legally
in Canada. 



International Law Favors War Resisters 



T

he struggle to achieve political refugee
status for U.S. war resisters in Canada can be seen as one of many
efforts worldwide to defend the primacy of international law. The
Geneva Conventions on War and the Nuremberg Principles make clear
that soldiers have not only the right, but also the responsibility
to refuse to participate in war crimes. Such war crimes include
illegal wars of aggression, indiscriminate or purposeful killing
and wounding of civilians, and torture and abuse of prisoners. 


According to the “United Nations Handbook on Procedures and
Criteria for Determining Refugee Status,” soldiers who refuse
to fight in wars that are “condemned by the international community
as contrary to basic rules of human conduct” should be considered
as refugees. 


The “Handbook” states that there are “also cases
where the necessity to perform military service may be the sole
ground for a claim of refugee status, i.e. when a person can show
that the performance of military service would have required his
participation in military action contrary to his genuine political,
religious or moral convictions, or to valid reasons of conscience.” 


At least two soldiers have been granted refugee status in Canada
in recent years. One, an Iranian medic, had refused to participate
in the illegal use of chemical warfare. The other, a Yemeni citizen
who was enlisted in the Iraqi Army, went AWOL after refusing to
participate in Saddam Hussein’s 1990 invasion of Kuwait. Significantly,
both men were initially denied refugee status by the Immigration
and Refugee Board before receiving relief from the Federal Court
of Canada. 


There are as many as 200 or more AWOL U.S. military personnel in
Canada today, according to the War Resisters Support Campaign. As
of April 2006, about 25 of them had filed claims for political refugee
status. Significantly, most of the recent arrivals are men who have
already served one tour in Iraq. While the presence of female GIs
in Canada is rumored, none have yet applied for refugee status. 



From Visitors to Refugees 



T

hese GIs traveled to Canada as visitors and,
after seeking legal advice, submitted their refugee claims to Canada’s
Immigration and Refugee Board. It is also possible, but not normally
preferable, to declare oneself a refugee to Canadian officials at
the U.S.-Canada border, or other point of entry, such as an airport. 








Once
a person has applied for refugee status, he or she is automatically
protected under Canadian refugee law and may live legally in Canada
without fear of arrest or deportation, as long as their claim is
pending. This may take several months to several years. Refugee
applicants also have access to Canada’s universal health-care
system. 


After several months, refugee applicants are able to receive Canadian
work permits if they can demonstrate that they do not have substantial
funds and would otherwise be dependent on welfare, called “social
assistance” in Canada. 


AWOL soldiers already in Canada should seek legal assistance and
apply for refugee status as soon as possible. This will legalize
their status as long as their refugee claims are being processed,
up to a year or more. If they do not apply for refugee status, they
do not benefit from the legal protections granted to refugee applicants,
and leave themselves vulnerable to possible arrest and deportation. 


Several AWOL U.S. soldiers have traveled to Canada with their wives
or partners and some with children. All of these family members
are included as refugee applicants under the primary refugee claim
of the war resister.  


Even if a U.S. war resister is eventually denied refugee status,
there are other avenues. Refugee applicants from around the world
often appeal to the Immigration Minister to be allowed to remain
in Canada for “humanitarian and compassionate” reasons.
Because they and their families have lived in Canada for some time
and have established themselves as self-supporting, responsible
residents, the Minister has the leeway to allow them to immigrate. 


U.S. war resisters seeking sanctuary in Canada enjoy considerable
political support among Canadians. Most Canadians strongly oppose
the war in Iraq and are grateful that the Canadian government chose
not to join “the coalition of the willing.” They do not
want their government to deport war resisters back to the U.S.,
where they would face prison for refusing to fight in a war that
Canadians oppose. 


The New Democratic Party, which supports sanctuary for U.S. war
resisters, made significant gains in the last election. Although
it is a small, progressive party (polling about 18 percent of Canadian
voters), it can be expected to exercise considerable leverage over
the minority Conservative government, which does not have enough
votes to pass legislation on its own. In the immediate future, nothing
will change. 


Most AWOL GIs going to Canada have traveled to Toronto, about a
four-hour drive north of Detroit, Michigan, or a two-hour drive
north of Niagara Falls or Buffalo, New York. At most busy crossings,
cars are waved across without much scrutiny. One can also cross
by bus, train, by plane (but one-way tickets may bring questions
from immigration officials). 


Those heading for Canada should have some ID to show, ideally a
U.S. passport. Otherwise, a picture ID such as a driver’s license
and a birth certificate will do. Military identification may be
used in a pinch and will not necessarily raise eyebrows. But this
should not be the first choice. 


If a GI comes under particular scrutiny at the border, does not
have the requested identification, or otherwise is facing the possibility
of being turned back to the U.S., then and only then should she/he
tell Canadian border officials they are seeking refugee status in
Canada. At least one GI did this recently, without problems. 


Thirty thousand Vietnam War resisters from the U.S. are productive
Canadian citizens, many of them prominent in the media, arts, business,
academia, and the law. Quite a few of them are actively involved
with the War Resisters Support Campaign. Many other Vietnam era
resisters who sought sanctuary in Canada, Sweden, England, France,
and other countries were eventually able to return to the U.S. with
little or no punishment, due to widespread disenchantment with the
war and a broad-based movement for amnesty for Vietnam War resisters. 


It remains to be seen whether the U.S. movement against the Iraq
War will spawn broad sentiment for amnesty or leniency for AWOL
GIs. But is the absence of a draft or outright amnesty, a blanket
pardon for AWOL GIs is unlikely. 



N

on-U.S. citizens who go AWOL
and leave the U.S. may possibly be barred from re-entry to the U.S.,
even if their charges are later cleared up. Those who advise GIs
to go AWOL or UA (Unauthorized Absence) could theoretically be charged
with criminal offenses, even though there is no record of this happening,
during the Vietnam War or since. But, for both legal and ethical
reasons, counselors should not tell people what to do. 






GI
counselors provide the most objective information possible to active
duty personnel, their families, and friends. Providing this information
is completely legal. Once they know all of their options, GIs can
assess the legal and practical consequences of each, and make a well-informed
choice best suited to them. 



AWOL in the United States 



T

housands of AWOL military personnel remain
in the United States. For the first 30 days or so of their absence,
the military issues a misdemeanor warrant that is not normally available
to local law enforcement officials; those in small towns, in particular,
may still be vulnerable to being apprehended. Generally speaking,
AWOLs are not (as of 3/06) actively pursued by the military, although
the Marines recently have been practicing a more aggressive policy
of apprehension and there have been cases of pursuit and apprehension
in every branch. GIs who surrender themselves before 30 days reported
absent commonly receive non-judicial punishment and are retained
in the service, provided no other reason for discharge manifests.
Discharge is possible, but unlikely. This decision is made by the
command they left. 


After 30 to 60 days or more, the names of AWOL GIs are dropped from
the rolls and the military issues felony warrants. These felony
warrants are available to local police authorities through the National
Crime Information Center (NCIC) and may be discovered in the course
of a routine traffic stop, for example. This may result in apprehension
by local authorities who hold the AWOL GIs in jail for several
days before military police arrive to take them into custody. If
a GI surrenders to the military, the felony warrant is lifted. 


When AWOL GIs are dropped from their units’ rolls, the military
puts them in “deserter” status. In order to scare GIs
into returning from AWOL before 30 days, the military likes to confuse
deserter status with the crime of desertion. But actual court martials
for desertion are currently extremely rare and wouldn’t apply
to someone who is in deserter status. 



GI Rights Hotline 



T

he GI Rights Hotline is a national (U.S.)
network of independent, nonprofit, nongovernmental organizations
that provides free counseling to active duty personnel, those in
the Delayed Enlistment Program (DEP), reservists and National Guard
members who want out of the military or who seek assistance in dealing
with abuse, harassment or grievances. Hotline counselors help GIs
who are pursuing discharges. 


The GI Rights Hotline also gets calls from GIs who are AWOL or UA.
With proper counseling, many AWOL military personnel have been able
to turn themselves in at certain military bases where they have
a good chance of receiving an Other-Than-Honorable administrative
discharge from the military. Before exercising this or other options,
military personnel are advised to call the GI Rights Hotline and
speak with a trained counselor. 



Administrative Discharge? 



B

efore AWOL GIs make a decision to go to Canada,
they owe it to themselves to learn all of their options, as do those
who counsel them. Certain categories of GIs are eligible for discharge
in lieu of court-martial, depending on branch of the military, length
of time in the military, length of time AWOL or UA, and administrative
status (dropped from their unit’s rolls or not). Those who
may be eligible for administrative discharge include:  




  • those in the Army who (a) have not completed Basic
    Training and Advanced Infantry Training (AIT), or (b) are stationed
    outside the Continental United States, such as in Germany, Korea,
    Alaska, or Hawaii (being deployed in Iraq, Afghanistan, or Kuwait
    is different) 


  • those in the Marines, but this is uneven and ever changing 

  • those in the Navy, but not those in the Air Force, which often
    court-martials even short-term AWOLs 

  • those in the Army National Guard or Army Reserves. High school
    age youth who have been recruited via the Delayed Enlistment Program
    (DEP) are not yet in the military. They can get out of their enlistment
    very easily, either by sending a letter to the recruiter commander
    stating they wish to withdraw or by not showing up on the ship
    date. Most, but not all, military recruiters lie to their DEP
    recruits about getting out,  threatening them with things
    like dishonorable discharges and jail, even though the recruiters’
    regulations forbid them from threatening or harassing DEP recruits 









In
general, GIs eligible to be administratively discharged from the
military, and who choose this option, will be put into an administrative
holding company and processed out with an Other Than Honorable (OTH)
discharge. The time this will take can vary between four days and
two months, depending on the branch of the military and other factors.
An OTH is not a criminal conviction. In a minority of cases, a Special
Court-martial may be given, with a brig or stockade sentence varying
from nothing to a few months or more (maximum one year) and a Bad
Conduct Discharge (BCD). A BCD is a misdemeanor conviction. A Dishonorable
Discharge (DD) can only result from a General Court-martial conviction
and is equivalent to a felony conviction. 



Dishonorable Discharges are quite rare (and almost never just for
AWOL), although the term is thrown around constantly by the military. 




D

ischarges that are not under
honorable conditions, whether OTH, BCD or DD, will result in the
forfeiture of all military benefits, including educational assistance,
housing loans, and access to Veterans Administration medical care,
(although VA medical care is something that veterans with otherthan-honorable discharges can still fight for). General discharges
(under honorable conditions) will give all benefits except for educational
benefits.  



Whatever path a GI takes to avoid going to war is, arguably, a good
one. Canada is one option that does have the advantage of being
easily accessible from many points in the United States. For some
military personnel, even a temporary stay in Canada may help them
to avoid deployment to war while they explore their options. The
War Resisters Support Campaign does its best to support U.S. war
resisters who come to Canada. It will continue to press the Canadian
government to provide a permanent sanctuary for resisters.



















Gerry
Condon works with U.S. war resisters, their lawyers, and the War
Resisters Support Campaign in Canada. The counseling memo was compiled
for the War Resisters Support Campaign and Soldier Say No/Project
Safe Haven.